Was a tribunal right to strike out a disability discrimination claim on the ground of a Claimant's refusal to engage with joint medical experts to establish her disability?
Yes, held the EAT, on the facts in Itulu v London Fire Commissioner.
Mrs Itulu claimed disability discrimination against the London Fire Commissioner. Her employer disputed she was disabled within the meaning of the Equality Act 2010. The employer asked for joint medical experts to be appointed to advise the employment tribunal on the issue (and offered to pay the cost). The Employment Judge agreed and made an order accordingly.
But problems ensued. Mrs Itulu, for reasons which were unclear, took exception to being examined by either of the two doctors who were the agreed medical experts, thus thwarting the process.
Following an application by the employer, the Employment Judge struck out the claims of disability discrimination on the grounds that Mrs Itulu's conduct in relation to the provision of expert evidence by doctors as ordered by the tribunal had been unreasonable.
The EAT rejected Mrs Itulu's appeal against the striking out order. First, it said, the Employment Judge had provided sufficient reasons for his finding that her conduct had been unreasonable. Secondly, he had justifiably found that her unreasonable conduct made a fair trial impossible. The Employment Judge had also duly considered a lesser sanction, in particular an 'unless' order. But he was entitled to consider that such an order would not have been appropriate in all the circumstances. Finally, as to the idea of instructing different experts, it was clear that Mrs Itulu's objection to one doctor in particular was not to him personally but to any physical examination, and so an order appointing new experts would be pointless.
Thanks to Dr John McMullen of Stone King LLP for preparing this case summary.
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