Government Communications Headquarters v Bacchus (Practice and Procedure : Striking-out/dismissal) [2012] UKEAT 0373_12_0608

EAT
Government Communications Headquarters v Bacchus (Practice and Procedure : Striking-out/dismissal)
[2012] UKEAT 0373_12_0608 · 2012-08-06
[1]This is an appeal by the Government Communications Headquarters (“GCHQ”) against a judgment of the Employment Tribunal (Employment Judge Sigsworth presiding) refusing its application to strike out or stay a disability discrimination claim brought against it by Mr Alfred Bacchus and requiring the parties to proceed to a merits hearing without either party being permitted to rely on expert evidence. The written judgment and accompanying reasons are dated 9 July 2012: the decision was taken and reasons given orally on 25 April 2012. The procedural background[2]Mr Bacchus was employed in government service from 2 September 2002. On 11 January 2010 he transferred to work for GCHQ as a senior press officer. His contract provided for his place of work to be Cheltenham. On 23 July 2010 he began a period of sick leave lasting until his resignation which took place on 8 September 2011.[3]In all Mr Bacchus has brought three claims to the Employment Tribunal. They were presented in May 2011, August 2011 and 30 November 2011. His claims include race discrimination, victimisation on health and safety grounds, and constructive unfair dismissal, including allegations that his dismissal was on grounds prohibited by reason of health and safety considerations and on public interest disclosure grounds. Of most direct relevance to this appeal is Mr Bacchus’s claim that he has been subjected to disability discrimination in all its various forms.[4]It is necessary to summarise Mr Bacchus’s case on the question of disability discrimination. We emphasise that his case has yet to be heard and is disputed in many respects by GCHQ. We summarise it from particulars given (in their most recent form) in December 2011.[5]Mr Bacchus alleges that he became ill on 23 July 2010 with acute anxiety. This, he says, is a mental impairment which was always likely to last at least 12 months, and has now lasted for more than that time. He says that he made a request to work at least half the week in London which was repeatedly refused or ignored. He says that his treatment on various dates and in various respects between July 2010 and August 2011 amounted to harassment by reason of his disability. Further he says that reasonable adjustments ought to have been made: GCHQ should have(1) dropped the requirement that he work in Cheltenham,(2) changed his line manager who was (in his perception) the cause of his anxiety state in the first place and(3) desisted from requiring him to attend meetings in Cheltenham. These features caused him to resign: they are relied on in support of his claim of constructive dismissal.[6]On 3 November 2011 a case management discussion took place. Mr Sykes represented Mr Bacchus. Miss Palmer represented GCHQ. Employment Judge Sigsworth, sitting alone, conducted the hearing. These personalities were involved in all the subsequent hearings; and Mr Sykes and Miss Palmer have appeared before me to day.[7]At this stage neither side had disclosed a medical report. The need for some medical evidence was apparent to both parties. Mr Bacchus was in the process of obtaining a report from Dr Laws, a psychiatrist who was treating him. He was ordered to serve that report by 17 November. By 24 November GCHQ was ordered to notify Mr Bacchus and the Tribunal if it intended to obtain its own medical report on the question of disability.[8]T he next case management discussion took place on 6 December 2011. A hearing date was fixed: 6 days beginning on 23 April 2012. No report had been served on behalf of Mr Bacchus. No order was made requiring him to serve a report. GCHQ had confirmed that it intended to obtain its own medical report: it had put forward a Dr Mallett, but Mr Bacchus was not prepared to accept him. An order was made in the following terms:
“12. On or before 12 noon on 16 December 2011, the Respondent will propose 3 medical experts for the Claimant to choose one. 13. On or before 18 March 2012, the medical expert’s report will be available to the parties. The Claimant will co-operate with the Respondent in the obtaining of appropriate medical evidence.”
[9]Cutting a long story short, GCHQ put forward three names, one of which was again Dr Mallett. Mr Bacchus did not accept any of them – giving reasons of one kind or another for the refusal. The Respondent was therefore not in a position to instruct an expert. The matter came before the Employment Judge again at a case management discussion on 22 March 2012. He made the following[10]Mr Bacchus did not attend the appointment. It was said that Dr Wise was connected to Dr Mallett, to whom Mr Bacchus also objected.[11]Mr Bacchus, however, obtained and served his own medical report – a report by Dr Bowers dated 2 April 2012. GCHQ was not consulted about the letter of instruction or the identity of the expert. Dr Bowers is a consultant psychiatrist; his report covers most, though not all the issues likely to arise; and it is supportive of the Claimant’s case.[12]Thus, when full hearing started on 23 April, Mr Bacchus had a report; but he had declined to attend any of the experts whom GCHQ had nominated. GCHQ applied to strike out or stay the disability discrimination proceedings on the basis of what it said was the unreasonable failure of Mr Bacchus to attend for examination with any of its chosen experts. It was this application which the Employment Tribunal refused, determining that the merits hearing would proceed without either party being permitted to rely on expert medical evidence.[13]B y the time the Tribunal had dealt with this, and other, preliminary matters it had insufficient time to hear the case. It was re-listed for a 9 day hearing commencing on 11 September 2012. The Tribunal’s reasons[14]The Tribunal carefully reviewed the contentions of the parties concerning the three experts – all psychiatrists – whom Mr Bacchus had refused – and was still refusing - to see. It heard evidence from Mr Bacchus and Dr Mallett. It rejected the arguments put forward by and on behalf of Mr Bacchus. It stated its unanimous conclusion that Mr Bacchus had presented no valid objection to any of the proposed doctors.[15]Why then, did the Tribunal refuse to order a stay or to strike out the disability discrimination claim? Its reasons are set out at some length; and we will repeat them in full. “8. We consider that the real test for us, given the position we are now in, is whether a fair trial is possible without expert evidence. To answer that question we have to consider the medical evidence that exists as we have seen it. What the Respondent says is that they require expert evidence to assist the Tribunal in relation to the nature, extent and effect of the admitted mental impairment, including to what extent the Claimant’s day-to-day activities are impacted. They also require medical evidence, they say, from an expert on the question of whether the mental impairment is long-term, or was likely to be long-term at a point in December 2010 or January 2011. Further, when it comes to the consideration of reasonable adjustments and whether the Claimant was placed at a substantial disadvantage and to what extent the adjustments sought are reasonable to removing that disadvantage, then again, expert medical evidence would be of assistance. However, we have noted and we have read some of the extensive medical records available, the occupational health and GP records, the medical certificates and the meetings with the Claimant and his medical records generally. 9. We conclude that a Tribunal on the basis of this evidence could decide the issue of disability which is after all, on the authorities not a medical question but one for the Tribunal to decide. Of course, the Tribunal would take into account medical evidence as was appropriate. We consider that the medical evidence that exists would assist us to come to a conclusion on an assessment of the impact of the mental impairment on normal day-to-day activities and whether, at any given time, the impairment was likely to be long-term. We believe that an expert now, looking back at the position as it was say 15 months ago, and mainly having regard to what the Claimant tells him when he is examined with a 15 months further history, is not likely to be of assistance. 10. We were referred by the Claimant’s representative to authorities. We note Rayner v Turning Point & Others [2010] UKEAT/0397/10. There, His Hon Judge McMullen said that if a condition of anxiety and depression is diagnosed by a GP, which causes the GP to advise the patient to refrain from work, that is in itself evidence of substantial effect on day-to-day activity. A similar view about the importance of a GP and his value in giving medical assistance was set out by the EAT in J v DLA Piper [2010] IRLR 938, under the then President, Mr Justice Underhill. The Respondent has also referred us to Smith v Ealing Hammersmith and Hounslow Health Authority , a decision of the Court of Appeal of May 1997, where the court quoted from the judgment of Lord Justice Sachs in another case called Lane v Willis , which set out some principles a court/tribunal should take into account when deciding whether or not to take the somewhat strong course of staying the action if a medical examination is not afforded. Lord Justice Sachs said that an order for a medical examination of any party to an action has been well said to be an invasion of personal liberty. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order, and when the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim or defence without that examination. We were also referred to Morris v Royal Bank of Scotland , on which case the Respondent relies in the context of seeking medical evidence to assist the Tribunal to determine various issues, including whether there was a likelihood of the impairment continuing for at least a year. However, that case clearly turns on its own facts and on the state of the medical evidence generally in that particular case. As we have said, we have already looked at the medical evidence in the case before us and we consider that we would be able on the basis of that evidence to determine the issue of whether the Claimant is disabled or not. 11. We have considered an alternative proposition, which is to allow the Respondent to instruct Dr Mallett to do a paper assessment In other words, to prepare a report on the basis of the examination of the medical records only, without actually seeing the Claimant However, we are mindful of the fact that Dr Mallett may say, having considered the medical records and history, that he has to see the Claimant before he can write his report. We have also considered the overriding objective and the requirement that cases should be dealt with proportionately and with cost and so on in mind. It is in the interests of justice that these complaints should receive early resolution for the sake of both sides and further delay is not desirable. If we allow medical expert evidence on both sides now, that is inevitably going to delay the process. Plus, we have reached the unanimous conclusion that we are persuaded that we should stop just short of the draconian strike out, which in the circumstances might be justified in this case, and that the Tribunal will proceed on the basis that there will be no medical expert evidence on either side. So, Dr Bower's report will be disregarded and the Respondent will not be allowed now to obtain their own expert medical report.” Submissions[16]On behalf of GCHQ Miss Palmer submits that the Tribunal elided two separate questions. The relevant question was whether the GCHQ was unable properly to prepare its defence without a psychiatric examination and report: see Lane v Willis [1972] 1 WLR 333. This was the correct question, because if GCHQ was denied the opportunity to prepare its defence properly the trial would not be fair.[17]The Tribunal identified the question correctly in paragraph 10 of its reasons, but answered a different question – namely whether the Tribunal could determine on the basis of the existing evidence whether or not Mr Bacchus was a disabled person. The cases upon which the Tribunal relied showed only that it was open to the Tribunal to reach conclusions on questions of disability without expert evidence. They were not cases where one party had denied the other the opportunity to obtain such evidence.[18]Miss Palmer also submits that if the Tribunal had answered the correct question it would inevitably have concluded that GCHQ was unable properly to prepare its defence without such a report. She took us to the issues which would be raised in the course of proceedings. She relies on RBS v Morris as she did below. She further submits that the Tribunal(1) concentrated on the question whether Mr Bacchus was a disabled person, whereas expert evidence would be relevant also to issues concerning reasonable adjustment, and(2) in deciding whether to strike out or stay the disability discrimination claim, left out of account prejudice to the Respondent.[19]Finally Miss Palmer submits that the Tribunal erred in law in its approach to the question of sanction. It did not adequately consider the imposition of a stay or an “unless order”. At the very least it should have given Mr Bacchus a last opportunity to co-operate with the making of a report in the knowledge that if he did not do so the disability discrimination claim would be struck out or stayed.[20]On behalf of Mr Bacchus, Mr Sykes submits that the Tribunal asked the correct question and reached a permissible answer without making any error of law. He submits that, when the sanction of striking out was under consideration the question was always whether a fair trial was possible: and the cases showed that it was possible to have a fair trial of issues relating to disability without expert evidence. He relies, as did the Tribunal, on J v DLA Piper [2010] ICR 1052 and Rayner v Turning Point [2010] EAT/0397/10. He distinguishes RBS v Morris [2012] UKEAT/0436/10 where, he says, the issues were altogether more problematic.[21]Mr Sykes has carefully taken us through the medical records which are available, seeking to relate them to the issues in the case. He emphasises that they included not only GP and psychiatric notes prepared by those treating Mr Bacchus but also occupational health records and letters prepared for GCHQ contemporaneously. He submits that expert medical evidence, looking back between one and two years after the event, would not add significantly to these documents. Mr Sykes further submits that it was in reality GCHQ’s insistence on their own choice of expert which led to their inability to obtain an expert report.[22]M r Sykes would characterise GCHQ’s appeal as essentially an appeal on the grounds of perversity; and he has taken us to well-known cases on the limited ambit of such an appeal. In any event, he submits, it was a case management order of a discretionary nature, and there was no error of law by the Tribunal in the exercise of its discretion. Statutory provisions[23]Provisions concerning disability discrimination were first contained in the Disability Discrimination Act 1995 . These provisions were re-enacted with some significant changes in the Equality Act 2010 . The changes are not of particular significance for determining the issues in this appeal concerning medical evidence. It would overburden this judgment to set out the legislation extensively: we will refer to some key concepts later in this judgment.[24]Procedure in the Employment Tribunal is governed by the Employment Tribunal Rules of Procedure (Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 . Wide powers to make case management orders are given to Employment Judges by rule 10; this contains, in rule 10(2), a non-exhaustive list of examples which include a power to stay the proceedings (rule 10(h)) and to give orders concerning the use of experts in the proceedings (rule 10(t)). An “unless order” may be made: see rule 10(3) and rule 13. At a hearing – such as the hearing which took place in April – the Tribunal as a whole may exercise these powers: see rule 27(7).[25]W hen deciding whether to make a case management order the Employment Judge or Tribunal must apply the overriding objective, which is to deal with cases justly: see reg. 3(1) and (2). Dealing with a case justly includes so far as practicable ensuring that the parties are on an equal footing; dealing with it in a way which is proportionate to the issues; ensuring it is dealt with expeditiously and fairly; and saving expense. Discussion and conclusions Obtaining expert evidence[26]The Employment Tribunal Rules to which we have referred endow Employment Judges and Tribunals with ample power to case manage the obtaining of expert evidence if such evidence is required for the just disposal of the proceedings.[27]Guidance has been given by the Appeal Tribunal as to the procedure to be adopted for obtaining expert medical evidence in cases under the Disability Discrimination Act 1995 : see De Keyser v Wilson [2001] IRLR 324 at 330. The guidelines laid out in De Keyser always repay careful study.[28]In the first place, as De Keyser shows, the parties should consider carefully whether expert medical evidence is required and consider with the Tribunal whether it should be admitted: see guideline (i) in De Keyser .[29]In this case it is plain that both parties considered whether expert medical evidence was required. Both thought that it was; the Claimant first intended to instruct a treating psychiatrist, but then went to Dr Bowers, a consultant psychiatrist not involved in his treatment; the Respondent from November 2011 intended to instruct a psychiatrist; the Tribunal considered the question of expert evidence with the parties and gave directions for its provision.[30]De Keyser then explains the two methods by which expert evidence may be obtained.[31]Firstly, there may be a joint expert report. This means a report where the parties agree the letter of instruction to the expert and the identity of the expert; or, in default of agreement, the Tribunal fixes the contents of the letter of instruction and the identity of the expert having heard submissions from the parties. This is, as De Keyser makes plain, the preferred course.[32]Secondly, however, each side may instruct their own expert. If this course is taken the parties are not required to agree, or the Tribunal to settle, the letter of instruction. Neither are the parties required to agree, or the Tribunal to settle, the identity of the experts. Generally speaking each side is entitled to choose the expert it wishes to instruct, so long of course as the expert is in an appropriate discipline. In this case the Tribunal permitted Mr Bacchus to choose from one of three names put forward by GCHQ. That was a more favourable order than Mr Bacchus was entitled to expect, given that the order was not for a joint expert. He was entitled to, and did, choose his own expert. GCHQ was entitled to do the same. Quite exceptional reasons would have been required before Mr Bacchus could properly veto GCHQ’s choice of expert: the Tribunal was, we think, plainly right to say that no such reasons existed here.[33]I t is, we think, too late to return to the beginning now and adopt what would, with hindsight, have been a sensible course on both sides: the instruction of a joint expert with a jointly agreed letter of instruction. The parties have moved on; even when his first choice proved unacceptable to him Mr Bacchus again instructed his own expert to provide a report; and GCHQ attempted to do the same, but was met with Mr Bacchus’s rejection of the experts put forward. The question for the Tribunal was: what is to be done in the light of Mr Bacchus’s refusal to co-operate? The sanction for non-cooperation[34]Traditionally in the civil courts the sanction for non-cooperation by a claimant with the obtaining by a respondent of a medical report on his condition was a stay. The relevant principles of law which the court should apply when considering an application for a stay of proceedings, unless a claimant submitted to a medical examination by a specialist instructed by a defendant were set out in the judgment of Sachs LJ in Lane v Willis [1972] I WLR 333. He said:
“The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to the action, act when deciding whether to take the somewhat strong course of staying the action if a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an ‘invasion of personal liberty’. Accordingly it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination.”
[35]The remedy granted in the civil courts – a stay – reflects the consideration that the court has no intention of placing a claimant under penalty of contempt if he does not submit to medical examination. But the stay granted can and will be permanent if the claimant does not submit to medical examination within the timescale laid down or (if an extension is applied for) such extension as is reasonable.[36]In the recent case of Abegaze v Shrewsbury College of Arts and Technology [2010] IRLR 238 – an employment case – Elias LJ set out what we regard as no more than a different route to the same conclusion: he proposed “an ‘unless order’ requiring the claimant to present himself for examination by a certain date, with the consequence that his case would be struck out for non-compliance if he refused or was otherwise unco-operative” (para 51).[37]W e consider that, whichever remedy is granted, the test laid down in Lane v Willis is apposite. The party applying for the order must show that he is unable properly to prepare his defence without the examination; and it must be reasonable – as it usually will be if that test is met – to make the order in the interests of justice. The Tribunal’s reasoning[38]In this case, having made case management orders on the basis that expert evidence was required, but faced with the refusal of Mr Bacchus to co-operate, the Tribunal effectively revisited the question whether expert evidence should be allowed, and decided that there would be “no expert medical evidence on either side”. There seem to have been three components to its reasoning. Firstly, it decided that it would be able on the basis of existing evidence to determine the issue whether Mr Bacchus was or was not a disabled person. Secondly, it considered that it should “stop just short” of the draconian strike out. Thirdly, it decided to disallow Mr Bacchus from relying on the expert evidence – which on the face of it was relevant and probative – which he had obtained.[39]Before examining this reasoning further, we think it important to keep in mind the issues to which expert medical evidence may be relevant.[40]Firstly, there is the question whether Mr Bacchus was a disabled person for the purposes of the relevant legislation and if so from what date. There is no doubt that Mr Bacchus was signed off work with an anxiety condition from July 2010 onwards. By the date of his resignation a little over a year later it might be thought fairly straightforward to decide that he was a disabled person. But Mr Bacchus’s case requires the Tribunal to consider at what date he became a disabled person for the purposes of the legislation. This is a much less straightforward question, involving an assessment of the point at which it became “likely” that he had an impairment which would last at least 12 months.[41]Secondly, there is the question whether the particular PCPs upon which Mr Bacchus relied - relating to working full-time at Cheltenham and working under a particular manager - placed him at a significant disadvantage compared with persons who were not disabled persons.[42]Thirdly, there is the question whether and to what extent the reasonable adjustments for which he contends would be effective in preventing the substantial disadvantage in question. This is a necessary component in deciding whether a particular adjustment would or would not be reasonable.[43]Fourthly, there is the question of remedy. Here questions of causation, diagnosis and prognosis are all potentially important. It appears that little thought has yet been given to questions of remedy on either side: but it cannot be altogether ignored in deciding what expert evidence might be relevant.[44]We turn then to the Tribunal’s reasoning. In our judgment the Tribunal has confused two questions.[45]The question which the Tribunal ought to have considered is whether in the circumstances GCHQ was unable properly to prepare its case without instructing an expert. This was the critical question, as Lane v Willis shows. Although the Tribunal identified this question in its reasons, it did not answer it; and we think if it had answered the question, it would have been bound to conclude that GCHQ was significantly disadvantaged if it could not instruct an expert.[46]In this case both parties had expressed the desire to instruct expert evidence from the outset. The Employment Judge had sanctioned the obtaining of such evidence at all the hearings until the last. Mr Bacchus had obtained expert evidence. The issues in this case are far from straightforward. The losses claimed are substantial – nearly £200,000. It was in our judgment entirely legitimate for GCHQ to instruct expert evidence: it was proportionate to the issues and reasonable to do so.[47]We have looked, as Mr Sykes invited us to do, at the existing material, which largely consists of medical certificates, letters and medical notes. If there was a simple issue as to whether Mr Bacchus was disabled in August 2011 it might have been possible to say that GCHQ was not placed at any significant disadvantage by its inability to obtain medical evidence. In this case, however, there is a range of issues on which the existing documentation does not speak with any certainty and upon which expert medical evidence is potentially important.[48]We do not need to say more than a word about the authorities with which we were pressed on each side. They are not cases on the question whether one side or the other should be allowed to obtain expert evidence, still less on the question whether a sanction should be imposed for non-cooperation. They are cases tending to demonstrate the problems which arise when there is no specialist expert medical evidence, and the limits of the ability of the tribunals to deal with them. On the one hand, J v DLA Piper and Rayner v Turning Point show that a tribunal is entitled to take into account existing medical documentation, including documents and letters generated by a general practitioner. On the other hand RBS v Morris shows that where issues are sophisticated and difficult an employment tribunal can be placed in significant difficulty if a claimant proceeds without specialist expert evidence.[49]The question which the Tribunal actually considered and answered was whether it could decide the issue of disability on the basis of the existing evidence. This is a different question: even if it could decide the issue of disability on the existing evidence it does not follow that GCHQ should have been prevented from seeking other, better evidence to call on the issue. The Tribunal also, as it seems to us, left out of account the prejudice caused to GCHQ by the course which it took. As to delay, the Tribunal was shortly to decide that the case ought in any event to be postponed because of delay; if delay was a serious consideration the Tribunal would have been wise to consider whether it was realistic to determine the case prior to refusing to stay.[50]We therefore conclude that the Tribunal erred in law in reaching its conclusion.[51]We do not accept Miss Palmer’s submission that the correct course is to strike out immediately. We consider that the correct course is plain. There should be an order of the kind envisaged in Abegaze – an “unless order” requiring Mr Bacchus to present himself for examination by a certain date, with the consequence that his case will be struck out for non-compliance if he does not do so. Enquiries by GCHQ indicate that one of their chosen experts, Dr Wise, can offer an appointment to see Mr Bacchus on 20 August at 2.30 and expects to be able to produce a report in 2-3 weeks. This is a tight deadline, but it is the only available opportunity for GCHQ to obtain medical evidence prior to the listed hearing in September. We will make an order that Mr Bacchus attend an examination at this time and place. We make it clear that we are in no position to guarantee to Mr Bacchus (who, we are told, is anxious that the hearing in September should be effective) that the hearing in September will be effective; that will be a matter for the Employment Tribunal in the light of any submissions which are made to the Tribunal. We hope, however, that the hearing will be effective; and expect the parties to prepare accordingly.[52]In passing we mention the following.(1) The issues have not yet been agreed between the parties. We record that Mr Sykes has prepared a schedule; Miss Palmer will consider that schedule and respond to Mr Sykes.(2) The parties would do well to consider whether there are issues of causation, condition and prognosis which need to be determined, and if so whether any of those issues can usefully be determined in September. All further matters of case management are, we make clear, for the Tribunal.

order

“1. The Claimant will attend an appointment with Dr Wise, instructed by the Respondent, on 30 March 2012, subject to credible evidence being found of undue influence... 3. On or before 13 April 2012, each party is ordered to disclose to the other any medical expert’s report to be relied on at the hearing.”