Proving the existence of disability

Where the existence of a disability is disputed, it is up to the claimant to prove that they are disabled. This normally means producing expert medical evidence. In some cases, a GP’s report, combined with the claimant’s own witness evidence, will be enough. In others, a report from a specialist consultant will be needed. Any expert report must be checked carefully to make sure it covers every aspect of the statutory test and any uncertainty should be taken up with the expert well before the hearing.

Tribunals expect the parties to cooperate in arrangements for expert medical evidence on disability, if possible using a jointly appointed expert. The EAT has issued guidance on this, in a case known as de Keyser v Wilson [2001] IRLR 324. Claimants should always cooperate if they can with arrangements for organising expert medical evidence. Unreasonable non-cooperation can lead to an “unless order” (see page 418), being ordered to pay some or all of the employer’s costs, and even dismissal of the claim (see Chapter 13).

In City Facilities Management (UK) Limited v Ling [2014] UKEAT/0396/13/MC, the EAT said a judge was wrong to order the employer to fund the cost of expert medical evidence on the basis that the employer could afford it whereas the claimant could not.

As well as providing an expert medical report, a claimant will need to reveal their confidential health records, for example, occupational health reports, GP letters, medical history and so on. The claimant’s own witness statement will need to explain the effect of their condition on their ability to carry out day-to-day activities.

Where a claimant suffers from a severe disfigurement, the tribunal can test its severity by listening to the claimant explain how it affects them psychologically. There is no need to produce photos (Hutchinson 3G UK Limited v Edwards [2014] UKEAT 0467/13/2904).

Even if a medical expert provides a report saying that someone is, or is not, disabled for the purposes of the EA 10, this does not mean a tribunal will agree.

A claim for disability discrimination can only succeed if the claimant was disabled at or before the date of the discriminatory act. The fact that a claimant is disabled by the date of the tribunal hearing will not help them prove their case.