Employers should avoid falling in to the same trap when assessing disability
In the case East of England Ambulance Service NHS Trust v Sanders the EAT had to decide whether a tribunal should have disqualified itself from hearing a case after it used the results of an internet search to introduce evidence which neither the employer or the employee had presented.
Facts
The preliminary issue was whether Sanders’ symptoms of depression meant that she was disabled for the purposes of the Equality Act 2010. There was a report from a psychiatric expert which concluded that her depression was mild and did not have a significant effect on her normal day-to-day activities. Sanders’ evidence centered on the causes of her depression, but there was not much information about its effect. The judge and the employer’s representative asked Sanders about the dosage of anti-depressants she had been prescribed.
During an adjournment, the tribunal conducted internet research into Sanders’ prescribed dosage. When the tribunal returned, it told both parties that it appeared from its research that Sanders had been prescribed the maximum dose. The judge asked Sanders whether she was aware she was on the highest dose of anti-depressant. He then asked if her GP had described her as being 'severely depressed' and, when she did not respond, he pressed her for an answer. The employer argued that as the tribunal had produced evidence from its own research that neither party had presented, and had assumed that the results of its own research were true, it should disqualify itself from hearing the case. The tribunal refused to do this.
EAT
The Employment Appeal Tribunal upheld the employer’s appeal. The tribunal had researched the issue, without prior reference to the parties. It was unclear why the tribunal had done so, since what was found was of dubious relevance, though it may have appeared to the employer and employee that it was trying to find evidence which might favour the claimant. The tribunal’s further questioning appeared to accept uncritically the reliability of what it had discovered. Its handling of its refusal to disqualify itself indicated it was hostile to the employer, not least by appearing to criticise a consultant psychiatrist, jointly appointed by both employer and employee, for not having examined the claimant properly, when there was no evidence for this.
A tribunal is not free to conduct its own research into the facts surrounding what happened in a case. Its role is to listen to evidence presented by both parties and make an impartial judgment. Assisting employees who present their own case to give evidence should not be confused with making a case for them which they have not tried to make. The case was remitted to a fresh tribunal.
Comment
The internet can be a valuable way of acquiring knowledge. But the EAT’s decision in this case highlights the dangers of relying on medical information obtained from an internet search, without taking advice from health professionals.
To avoid making the same mistake when deciding if employees are disabled, employers should:
- consult with employees to establish their understanding of their physical or mental impairment and its effects on their ability to carry out normal day-to-day activities
- seek a medical opinion on whether the employee is disabled, outlining the employee’s own views and providing any further workplace information about the impairment and the impact on the employee’s performance that the organisation can gather
- consider all the information in conjunction with the government’s Guidance on matters to be taken into account in determining questions relating to the definition of disability.
And if any doubt remains about whether the statutory definition of disability is satisfied, employers should seek further medical advice to clarify any specific issues.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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