England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE SEROTA)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 November 2011

Lord Justice Pill:

1. This is an application for permission to appeal against an order of HHJ Serota QC, sitting alone in the Employment Appeal Tribunal on 20 May 2011. The application to him came under Rule 3(10) of the Employment Appeal Tribunal Rules and Procedure after the matter had been dealt with under Rule 3(7) by HHJ Peter Clarke on 18 January 2011.PRIVATE 
2. The claimant, Ms Leeks, is claiming damages in the Employment Tribunal against her employer, St Georges Healthcare NHS Trust and also her manager, based on a disability discrimination, failing to make reasonable adjustments and also direct discrimination.
3. There was a case management hearing at the Employment Tribunal on 28 November 2010 before Employment Judge Stacey who made an order which stated at paragraph 5.1:

"The name of the condition, illness or impairment the Claimant is said to have by reference to a specific diagnosis and, if the condition, illness or impairment is generic, in specific detail to enable the Respondent to understand its likely effect."

4. The employment judge ordered that in default of such disclosure the claim would be stayed, and as a result it has been stayed since 4 January 2011.
5. No detailed attack is made upon the precise wording of the order. The application is on the basis that it is not necessary for the applicant to disclose her medical condition and, to adopt the words in the skeleton argument prepared by Mr Allen, out of which "adverse consequences" arise. He states in paragraph 7 that the applicant is willing to provide information about her physical impairments and that is "the substantial long term adverse consequences arising from her medical condition". The dispute is as to whether or not the applicant should be required to disclose her medical condition.
6. Mr Roberts, on her behalf, refers to the definition in section 1(1) of the Disability Discrimination Act 1995 -- he submits that four questions must be asked by a tribunal. I refer to the first two of these as stated by him: (a) Does the claimant have an impairment which is either physical or mental?; (b) Does the impairment have an adverse effect on the claimant's ability to carry out normal day-to-day activities?
7. Mr Roberts submits that to answer those questions it is not necessary under the terms of section 1 to disclose the medical condition or any diagnosis by doctors. The applicant has been prepared to disclose her medical condition to the Occupational Health Department of her employers, and set out in the skeleton is the information which she has given. It is submitted that the employers have imputed knowledge of that condition and further disclosure is unnecessary.
8. I have put to Mr Roberts that question (a) cannot properly and fairly be answered for present purposes unless the tribunal has access to medical evidence as to the impairment. In answering the question which for the present purposes of argument I assume is a correct one: does the claimant have an impairment which is either physical or mental? Can that question be answered without the tribunal knowing what the alleged impairment is? The applicant is fully prepared to disclose the consequences of it: the issue is whether she can be required to disclose, as a condition of being permitted to proceed with her claim, what the medical condition is which gives rise to the alleged disability.
9. I agree with the judgment of HHJ Serota and his summary at, for example, paragraph 11. This is a renewed application, it has been refused on consideration of the papers by Mummery LJ who has given reasons for that.
10. The court's duty is to act fairly as between the parties and the court has fact-finding responsibilities. The duty of a judge is to ensure a trial which is fair as between the parties, that is as between the applicant and her employers, and that involves the judge being able to assess evidence. The judge can only do that in relation to section 1 if he has necessary evidence, which if the trial is to be fair, may include medical evidence. It is not enough to give evidence of the effect of the medical condition. That can only fairly be assessed if the medical condition is known, so that an analysis of it and its consequences is possible. This means an analysis of what is reasonably required to meet any established disability.
11. There will, of course, be cases where expert medical evidence is not required where the medical condition is agreed as between the parties or where it is so obvious that it is not necessary to call a doctor to prove it. However, the principle must be upheld by the courts that it is their duty to make an assessment and an assessment as required by section 1.1 of the Disability Act and other sections. This is not possible unless the court has access to the medical condition: only then can its effect be fairly and adequately analysed.
12. I find it difficult to understand why the applicant is prepared to disclose to the occupational health but not to the Employment Tribunal judge. The answer given, and I see the force of it, is that it should not be made public and the applicant has reasons, which of course I would respect, that she does not want her medical condition to be public knowledge. If one comes to court or a tribunal making a claim one must expect to put the court in a position where it can fairly assess the claim and in my judgment the employment judge was entirely justified in imposing the stay having regard to the approach adopted by the applicant.
13. I made clear and repeat that I am not here to case manage, I am here simply to refuse or to grant the application and for reasons I have given I propose to refuse it. However, there may be ways in which in order to obtain a lifting of the stay, an offer can be made and a procedure could be considered whereby the publicity given to the medical condition is restricted.
14. I cannot take that further. The judge cannot conduct a fair trial unless both parties have all necessary information, but I simply say that there could be some scope for case management measures which would to a degree alleviate the applicant's concerns. I can take that no further.

Order: Application refused.