Morgan v Abertawe Bro Morgannwg University Local Health Board

In Employment Tribunals, expert evidence should be permitted where it is reasonably required to resolve the proceedings. The assessment is informed, but not displaced, by the overriding objective. The Tribunal should consider the issue’s inherent need for expert assistance, the likely significance of that assistance, and the importance of the issue, balanced against cost, delay and complication.

The Tribunal must first decide whether expert evidence should be admitted in principle. If so, it should then give fair and case-specific directions about its form, including joint or separate experts, instructions, questions and oral evidence. A limited preliminary report should not ordinarily determine admissibility of fuller expert evidence. Substantive objections to an admitted report should generally be left to the tribunal determining the issue unless the report is plainly incapable of assisting.

The Claimant, a psychiatric nurse therapist with a long-term mental health disability, succeeded in a reasonable-adjustments claim. The Employment Tribunal found that the Respondent should have redeployed her to suitable work between April and August 2011. It also found that by August 2011 she was unfit for any work.

At the remedy stage, the Claimant contended that timely redeployment might have prevented or delayed the deterioration which ended her employment. She sought permission to rely on psychiatric expert evidence about that counterfactual. The Employment Tribunal required a paper-based report before deciding the application, then refused permission after assessing Dr White’s report.

The Claimant appealed the refusal. The central issue was whether expert medical evidence was reasonably required to determine the causal consequences of the failure to redeploy.

1. Appeal allowed. The Employment Tribunal’s refusal to permit expert medical evidence was set aside. The EAT substituted a decision that such evidence be permitted on the identified remedy issue.

2. The Tribunal correctly treated the test in Civil Procedure Rules 1998, rule 35.1, as applicable by analogy: expert evidence must be reasonably required to resolve the proceedings. References to necessity, fairness and just resolution describe, rather than increase, that test. The overriding objective informs the assessment but is not a separate threshold.

3. The proper sequence is important. The Tribunal should first decide whether expert evidence is admissible in principle on a precisely identified issue. If it is, it should then give directions concerning its preparation and presentation, drawing where appropriate on De Keyser [2001] IRLR 324. Those directions may address a single joint expert, separate experts, instructions, questions and oral evidence.

4. The Employment Tribunal instead made its decision conditional on a restricted paper-review report and then treated its appraisal of that report as decisive. That was wrong in principle and unfair. It pre-empted the later task of assessing fuller evidence, potentially informed by an examination of the Claimant and questions to the expert, at the remedy hearing.

5. The report was capable of assisting. The relevant counterfactual assumed that the Claimant would have taken suitable work which she was fit to perform, and asked how her mental health and capacity for continued employment would then have developed. That question concerned the nature, history, pathology and aetiology of mental illness. It was inherently suitable for expert medical assistance. A counterfactual assessment may involve reasoned speculation rooted in the available evidence.

6. Cost, delay and hearing time could not outweigh the substantial contribution of expert evidence to a fair determination of this major and potentially valuable remedy issue. Applying Jafri [2014] ICR 920, only one lawful answer was possible: expert evidence was reasonably required. Further case-management directions were left to the Employment Tribunal.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and substituted a decision permitting expert medical evidence on the remedy issue.
• Employment Tribunal: at a preliminary hearing in December 2018, refused permission to rely on psychiatric expert evidence obtained following an earlier direction. No citation for that decision was stated.