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Disability: Who should get and pay for medical evidence?

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Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Can an employment tribunal insist both that the Claimant obtains further evidence on her alleged disability, and that the Respondent should pay for it?

No and no, held the EAT in City Facilities Management v Ling.

The Claimant was a janitor based in a supermarket. She was dismissed on grounds of capability following a period of absence which began due to a psychiatric condition (depression/anxiety). A separate assessment by the DWP had concluded that she was not disabled.

A pre-hearing review was arranged to consider the issue of disability and whether to strike out the Claimant's claims as having little prospect of success. The Tribunal decided that it required expert evidence rather than simply the GP records in order to consider this, and given the Claimant's finances also that the Respondent should pay for this report. The Respondent appealed.

In allowing the appeal, the EAT held that the evidence was unnecessary, as the Claimant herself could give evidence on the effect of the impairment, and that the overriding objective did not require a Respondent to help support a weak case against it. The case was remitted to a fresh Tribunal.