Proving disability 




It is for the claimant to prove that they have a disability if the employer disputes this. In some cases, this may be possible without the need for a medical report, by describing in their witness statement the impairment and its effects on their ability to carry out normal day-to-day activities. In other cases, expert medical evidence will be needed. Sometimes a GP’s report, combined with the claimant’s own witness evidence, will be enough, but sometimes 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 parties to cooperate in arrangements for expert medical evidence on disability, if possible using a jointly appointed expert. The EAT has issued guidance, in a case known as de Keyser v Wilson [2001] IRLR 324. There is also a helpful ET Presidential Guidance Note available online: Guidance Note 4: Disability. 


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 462), being ordered to pay some or all of the employer’s costs, and even dismissal of the claim (see Chapter 14).


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 pay for the expert medical evidence because the employer could afford it whereas the claimant could not.




As well as providing an expert medical report, a claimant will have to reveal confidential health records, for example, occupational health reports, GP letters, medical history and so on. Few people are comfortable with their confidential medical records being disclosed in this way and the employment judge can be asked to make an order limiting what must be disclosed and to whom. There may be some limited financial support available from the tribunal towards the costs of obtaining medical evidence.