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Medical evidence to prove disability

Posted on 19th May 2014
Case law

If it is not agreed that a claimant was disabled medical evidence may be required. This case considers if it is appropriate for an employment tribunal to require the employer to pay for that medical evidence.

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Adrian Green Adrian
Senior Employment Law Solicitor Telephone: 01473 694403

medical evidence is not always necessary.

City Facilities Management v Ling 2014

The facts

CFM provides on-site services, including cleaning, to its customers. Its main customer was Asda. Mrs L worked for CFM as an ‘Asda Ace Janitor’ from September 2010 until her dismissal for capability reasons in October 2012. She was on sick leave from February 2012.

Mrs L brought claims for unfair dismissal and disability discrimination. In a nutshell, Mrs L’s claims were based on the premise that her sickness was genuine and she was under a ‘sick note’ so CFM should not have dismissed her. A preliminary issue was whether Mrs L was a ‘disabled person’.

The decision

It was for Mrs L to show that she was a ‘disabled person’.

Mrs L was going to do this by giving verbal evidence. She had also disclosed her GP records.

The employment tribunal decided that it also needed a medical report. It ordered CFM to pay the full costs of instructing the expert (on a joint basis) because Mrs L could not afford her share. CFM on the other hand could easily afford to pay.

CFM appealed.

The EAT overturned the employment tribunal’s order. It decided that medical evidence is not always necessary. There were other approaches that the employment tribunal could have adopted, including questioning Mrs L, questioning Mrs L’s GP, CFM instructing its own (rather than a joint) expert and exploring payment of (or at least a contribution to) the costs of the report by the employment tribunal administration.

In practice

In some claims the parties will agree that the claimant is disabled and medical evidence may not be required at all.

In others, there are a number of other options the employment tribunal can explore. If more medical evidence is required, this case suggests that it will not be appropriate for the employment tribunal to require the employer to foot the bill and help the claimant prove their case. The EAT noted, however, that each case is different and there may be circumstances where it is.

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