Occupational Medicine Advance Access originally published online on November 20, 2007
Occupational Medicine 2008 58(1):35-40; doi:10.1093/occmed/kqm128
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Are tribunals given appropriate and sufficient evidence for disability claims?
Working Fit Ltd, PO Box 389, Temple Ewell, Dover, Kent, CT16 3AW, UK
Correspondence to: Tony Williams, Working Fit Ltd, PO Box 389, Temple Ewell, Dover, Kent, CT16 3AW, UK. Fax: +44 1304 828999; e-mail: tonywilliams{at}workingfit.com
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Abstract |
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Background Occupational physicians are sometimes surprised at the decisions made by employment tribunals.
Aim To assess employment tribunal judgements on disability discrimination in order to determine whether the evidence placed before the tribunal was appropriate and sufficient.
Method Qualitative review of recorded tribunal judgements for an 18-month period between 1 January 2005 and 31 June 2006.
Results Of a total of 2497 cases, 2271 (91%) were withdrawn or settled before going to tribunal. Of the remaining 226 cases, 38 were default judgements. In total, 188 cases were actually heard and only 65 judgements were recorded. Of these, 50 (2% of all cases) were full hearings. In 18 full hearings, there was input from an occupational physician, and the tribunal view was that there was discrimination in six cases, four where the advice had been ignored. Only four cases had input from a consultant occupational physician; in three cases, the finding was that discrimination had not taken place and in the fourth, the advice from the consultant was ignored by the management.
Keywords Adjustments; disability; occupational physician; tribunal
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Introduction |
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The UK Parliament passed the Disability Discrimination Act (DDA) in 1995. The DDA defines disability and places specific duties on employers. A separate system of courts has evolved to deal with employment issues (including disability discrimination), now called employment tribunals.
Disability is not a clearly defined entity in medical textbooks; it is a social construct. In order to encompass the issues most likely to lead to discrimination, the following definition was adopted by the DDA:
A person has a disability ... if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal daily activities [1].
This definition is qualified by case law [2] and guidance [3]. Only a tribunal can determine, on the facts presented, whether or not a person meets this definition. What is of equal importance is the duty subsequently placed on management, to make ‘reasonable adjustments’ [4].
The tribunal assesses impairment in relation to the capabilities listed in Schedule 1 of the DDA (Table 1).
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Employment tribunals have one legally trained chairman and two lay members. None have the medical expertise that doctors use daily to assess physical and mental impairments. They often rely on doctors to identify the evidence to enable them to make the legal decision whether the individual is disabled. Employers are likely to seek advice from treating clinicians, either general practitioners (GPs) or specialists who may never have heard of the DDA 1995, may have little understanding of its application and may have little appreciation of workplace adjustments. Treating clinicians may also prepare reports in their role as the patient advocate rather than providing an objective and independent opinion.
Some tribunal decisions are apparently at odds with either medical knowledge or common sense. Are these decisions made because of a lack of evidence presented to tribunals? Are tribunals presented with evidence that is appropriate, correct and objective? The aim of this study was to find what evidence was presented to tribunals, who had provided the evidence and whether it was sufficient to enable the tribunal to come to an appropriate conclusion.
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Methods |
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A study was carried out to review the evidence considered in tribunal judgements on DDA cases over an 18-month period from 1 January 2005 to 30 June 2006. Ideally all material presented to the tribunal would have been analysed; however, this material is not available publicly. The only material that is archived is the written judgement prepared by the chairman when requested. A full written judgement is not always prepared.
Tribunal judgements for England and Wales are stored at the Employment Tribunals Public Register at Bury St Edmunds. All tribunal cases are entered on a database, and a paper record of the judgement is archived. The database was searched against the jurisdiction code ‘DDA’ and all written judgements identified were retrieved from the archive.
The database fields are apparently clear, but the data entered are not always so. For example, all the judgement outcomes from the Bury St Edmunds Tribunal were recorded simply as a full stop. Not all judgements were archived; it was unclear whether this was because no judgement was ever produced or just that the paper copy was not filed.
Those completing the fields used different terms that were neither necessarily clear nor consistent. For example, ‘dismissed’, ‘struck out’, ‘no reasonable hope of success’, ‘not well founded’ or ‘out of time’ were all used for the same reason. The pre-trial hearing could be listed as ‘succeeds’ because the complainant was found to be disabled, while the full hearing was dismissed because there had been no discrimination. In many cases there was no full hearing, suggesting that the case had been withdrawn or settled. Little can be gleaned from the database itself in terms of the case or the outcome.
In many cases, the judgements offer a significant resource of information on the case. All judgements that included a ratio (reasoning) on disability discrimination were then subjected to further analysis.
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Results |
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The search produced a total of 2497 cases (Table 2). Of the total, 2271 cases (91%) did not progress to a hearing. Besides the reasons listed, cases were also listed as ‘withdrawn’, ‘settled’, ‘claimant failed to attend’ or ‘claimant failed to provide information’. In other cases, there was no further mention of disability, so it was presumed that this part of the claim was dropped from the case.
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The remaining 226 cases went before tribunals either as pre-hearing reviews or as a full hearing. Thirty-eight cases were default judgements, where the respondent failed to send in their response on time and as a result the claimant automatically won the case. In a number of cases either no ‘ratio’ (reasoning) was provided with the judgement or a simple statement was made, for example, ‘the condition "blepharitis" is a disability’ [5]. One hundred and eighty-eight cases were heard, and 65 judgements were available in the library. Fifteen of these 65 were pre-hearing reviews or preliminary judgements just to determine whether the claimant had a disability, and 50 were full hearings.
Judgements were not written to a standard format, and as in the database, different phrases were used to convey the same message. In some cases, the judgement implied a failure to make adjustments rather than stating it. Some cases involved both physical and mental health issues and it was not always clear which were considered impairments (Table 3, available as supplementary data at Occupational Medicine online).
In 18 full hearings, there was input from an occupational physician and there was discrimination in six cases, four where the advice had been ignored (Table 4). Only four cases had input from a consultant occupational physician; in three cases, discrimination had not taken place and in the fourth, the advice was ignored by the management. A total of 17 occupational physicians gave advice, of whom 12 gave advice on adjustments (Table 5). A total of 19 non-occupational physicians gave advice, of whom four gave advice on adjustments (Table 6).
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Four of the 65 cases [6–9] had ‘dyslexia’. There was no evidence of formal assessment to confirm the diagnosis.
One claimant [10] had a history of ‘vibration white finger’. His disability was determined in a pre-hearing review. When assessed pre-employment by an occupational physician, he stated that his condition affected him ‘several times a day’ and the tribunal decided he was disabled. The history indicated a significant risk of further and substantial injury and he was considered medically unfit for the role he had applied for [11]. At the full hearing, the claimant changed his story, stating that he only had symptoms several times a day on rare occasions. The tribunal found that he could do the job he had applied for.
There were six cases where specific comments were made in the judgement about a medical opinion on whether the impairment was substantial. One jointly commissioned report stated, after describing the level of impairment, that it was for the tribunal to decide if this was substantial; the report was specifically praised for this [12]. In two cases, the chairman simply agreed with medical opinion on the degree of impairment without further comment [13,14]; in both cases, the claimant was found not to be disabled. In another two cases, the chairman specifically criticized the doctors for offering an opinion, disagreeing with the opinion in both cases; in one case, the claimant was found to be disabled [15], in the other, he was not disabled [16]. In a further case, the chairman accepted the opinion of the doctor but pointed out that it was for the tribunal to decide [17].
In one case [18] where there was no medical evidence presented, the chairman stated:
the tribunal has no medical qualifications .... We have no evidence on the matter and we are not equipped to make a judgement on those points.
In another case [19], the tribunal were unable to determine the effect of medication as no medical evidence was provided, and they found the claimant was not disabled.
In some of the cases, there was uncertainty over the specialist role of occupational physicians. In most cases where a doctor had provided a report, his/her specialist role was stated. Where a report was provided by an ‘occupational physician’, it was not always clear whether this was by an accredited specialist or ‘consultant’ (a Member or Fellow of the Faculty of Occupational Medicine and therefore a specialist in the field of occupational medicine), an occupational physician (a doctor with post-graduate training in occupational medicine, a Diplomate or Associate of the Faculty of Occupational Medicine, often a GP) or a doctor with no occupational medicine qualifications.
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Discussion |
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The great majority of tribunal applications under the DDA are settled or withdrawn before the hearing takes place. This may be because as both sides prepare, the outcome appears so predictable it is not worth taking the case further. This could explain the lack of input from consultant occupational physicians to cases that are actually heard; their advice clarifies the issues and enables a settlement without a hearing being necessary. Settlement may also be because the employer chooses to pay a relatively small amount to the claimant rather than face higher costs even though the case is ‘winnable’. Where advice was sought from doctors with occupational medicine qualifications, this was more likely to have recommendations on adjustments and the disability discrimination case more likely to be dismissed.
Evidence for clear and full advice on adjustments was only present in six cases, including the two involving ‘Access to Work’. In the other cases, there was insufficient evidence in the judgement to comment on the quality of advice on adjustments. The findings suggest that doctors without occupational medicine qualifications are generally unable to or reluctant to provide advice on adjustments and that tribunals are less likely to find discrimination has taken place where management had sought and listened to advice from occupational health practitioners.
To my knowledge, this is the first study to consider medical evidence presented to tribunals in disability cases. It was difficult to determine whether the advice on adjustments was appropriate without access to the original reports. In a number of cases, the advice appeared to be brief, for example, ‘redeployment’ or ‘avoid heavy lifting’. This may well be all that is required, however, if the advice is too brief the employer may not be able to identify an appropriate role. Adjustments are not always appropriate; where the claimant was unfit for all work, adjustments would not be relevant apart from allowing sickness absence while they were unfit. In other cases, there may be a disability but there is no requirement for adjustments.
Expertise in the relationship between health and employment, including advice on appropriate adjustments, lies in the field of occupational medicine; treating clinicians would not normally be expected to have this expertise. Tribunals and managers do not appear to have a clear understanding of the specialist nature of occupational medicine and the relevance of occupational medicine qualifications. Where treating physicians have provided evidence not specifically for the tribunal, this must be considered in the light of their role as patient advocate.
In cases where the employer has already identified that adjustments are needed and might be possible, the official source of guidance is Access to Work. Their ergonomists are not always constrained by financial considerations and may recommend what is possible rather than what is necessary [20]. The employer will usually need definitive advice, including recommendations for a redeployment to suitable roles as well as advice on specific tasks and activities that the employee can or cannot undertake. Occupational medicine as a speciality specifically addresses these issues, and an occupational physician or occupational health adviser should be able to provide appropriate advice or recommend a suitable specialist.
Consultant occupational physicians are often asked for advice in relation to tribunal cases; however, anecdote suggests that these cases rarely appear in tribunals [21]. The lack of input by consultant occupational physicians in cases coming to hearings would seem to support this view. Paradoxically, the most appropriately trained and experienced doctors may be the least likely to appear before a tribunal because their expertise helps keep cases out of tribunals.
There have been tribunal and appeal tribunal judgements that have been critical of doctors who have given an opinion on whether an impairment is substantial or whether the DDA applies because it is ultimately the tribunal, not the doctor, who decides. The first to set precedent was Vicary v. British Telecommunications plc [22].
Where there is somatization or functional overlay, the tribunal needs to determine whether an impairment would be expected in the circumstances and whether the impairment is as substantial as the claimant suggests. This requires more than a description as the doctor is inevitably expressing an opinion. Avoiding such a statement makes it harder for the tribunal to come to a fair and objective decision. In cases where there is mental impairment, it is particularly difficult for tribunals to make an objective assessment without expert evidence. Individuals may have poor insight into their actual capabilities. There are circumstances where a claimant may play down the effects of a condition as recognized in Goodwin v. The Patent Office [23]. An occupational physician has an ethical duty to the employee as well as to the employer, and this duty would include careful investigation and assessment in these circumstances to determine if the employee does in fact have a ‘substantial impairment’.
An occupational health practitioner will be expected to give his opinion to management in a report. The report may subsequently become evidence in a tribunal. There is no reason why a tribunal should criticize an opinion given in good faith to assist the management process. Tribunals have taken particular exception to definitive statements by practitioners that claimants are or are not disabled. They are less likely to object if the practitioner states ‘in my opinion the DDA would apply’, particularly where the reasons are given objectively in relation to the eight categories listed in Schedule 1 of the DDA. The statement ‘ultimately it is for the tribunal to decide’ is likely to help further and can be added where appropriate. If a report is prepared specifically for a tribunal, there is generally no need to give an opinion on disability provided the nature of the impairments is clearly stated. An opinion will be required on the effect of treatment but this should describe the nature of the impairment expected without treatment so the tribunal can make up their own minds about ‘substantiality’.
Tribunals have in the past expected doctors to be specific in their comments on expected impairments, particularly where employees are or appear to be ‘malingering’. This was evident in Scottish Courage v. Guthrie [24], where an employee was found fit by an occupational physician but his GP continued to sign him off sick. The chairman stated that as the occupational physician had not found that the employee was malingering, he must have been genuinely sick. Most doctors will be extremely reluctant to state that an employee is malingering because the term is pejorative [25]. Such a statement would almost certainly damage the doctor–patient relationship and is likely to be challenged by the threat of a formal complaint, litigation or worse. In one Australian case where four orthopaedic surgeons labelled a patient as a malingerer, three were shot and two of them fatally [26]. If tribunal chairmen expect such a statement and base their conclusions on the lack of these statements, they risk a perverse judgement.
The DDA specifically considers ‘long term’ in relation to an underlying condition. It is important to differentiate between separate episodes that happen to have the same diagnosis and the continuation of an underlying condition. Having flu three times in 10 years does not mean that the individual has one underlying condition. If a rugby player happens to fracture the same ankle twice 5 years apart this does not automatically mean he has an underlying ankle problem. There is, however, a tendency to assume that if an individual has two episodes of ‘depression’, this must mean an underlying disorder. If there are good circumstantial reasons for the individual to be depressed, perhaps first because of a bereavement, then for a divorce, this does not imply a ‘long-term impairment’. The nature of the depression and the events surrounding it will need to be considered carefully by the tribunal which should take a purposive view [27] based on objective medical opinion.
The variation in detail between judgements and the lack of consistency of terminology in both the database and in judgements make objective analysis difficult. While it appears that occupational health practitioners are more likely to provide employers with advice on adjustments as well as appropriate advice to the tribunal, the small numbers of cases and inconsistency in data make this difficult to prove. Furthermore, cases going to tribunal represent an extreme end of a spectrum of medical advice to management and of the management process.
A better understanding of the DDA and the way tribunals function in relation to the DDA is likely to improve management of individuals with disabilities and reduce tribunal applications. The current system does not support this because the information is difficult to access, inconsistent and at times unclear. Further analysis of tribunal judgements might shed more light on the process; it would be more useful if all the evidence were available for analysis, particularly the medical reports. It would be of considerably greater value if the processes of producing judgements and compiling the database were made consistent and accurate and if both the database and judgements were made available electronically, preferably on the Internet.
Key points
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Working Fit Ltd.
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Conflicts of interest |
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The author is a director of Working Fit Ltd.
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References |
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- Disability Discrimination Act 1995 s1.
- In particular the definitions of ‘substantial’ and ‘adverse effect’ are clarified in Goodwin v. In: The Patent Office (1999) IRLR 4 EAT.
- A detailed approach to determine a ‘substantial adverse effect’ for impairments is covered in Guidance on Matters to Be Taken into Account in Determining Questions Relating to the Definition of Disability. (2006) London: DWP.
- Disability Discrimination Act 1995 s 4a.
- Hodgkins v. PSA Peugeot Citroen [ 2005] 1300057ET.
- Evered v. British Institute for Brain Injured Children [ 2005] 1401104ET.
- Pendlebury v. Citizen Advice Bureau [ 2005] 2401475ET.
- Shepherd v. New Southern Railway Ltd [ 2005] 3100661ET.
- Worledge v. Moulsham Residential Home (Chelmsford) Ltd [ 2005] 3200258ET.
- Travis v. St Helens MBC [ 2005] 2101010ET.
- Mason M, Poole K. Clinical Testing and Management of Individuals Exposed to Hand Arm Vibration: An Evidence Review (2004) London: Faculty of Occupational Medicine.
- Percival v. West Mercia Police [ 2005] 1300143ET.
- Kennedy v. Royal Mail [ 2005] 2400956ET.
- Fellowes v. Nationwide [ 2005] 2300029ET.
- Tilke v. Devon Fire And Rescue Services [ 2005] 1700 290ET.
- Waldman v. Albion Chemical Distributors [ 2005] 2403007ET.
- Wilson v. Mars UK [ 2005] 1500189ET.
- Bradshaw v. Philip Milton & Company PLC [ 2005] 1700 265ET.
- Hughes v. Dr I Gibson & Partners [ 2005] 3201159ET.
- Peacock v. CIE International Ltd [ 2005] 1501277ET.
- Association of Local Authority Medical Advisers Internet discussion forum. http://www.alama.org.uk (9 November 2006, date last accessed).
- Vicary v. British Telecommunications plc [ 1999] IRLR 680 EAT.
- Goodwin v. The Patent Office [ 1998] EAT 57 98 2110.
- Scottish Courage v. Guthrie [ 2004] EAT 0788/03/MAA.
- Halligan PW, Bass C, Oakley DA. Malingering and Illness Deception (2003) Oxford: Oxford University Press.
- Parker N. Malingering: a dangerous diagnosis. In: Med J Aust (1979) 1:568–569.[Web of Science][Medline]
- Goodwin v. The Patent Office [ 1998] EAT 57 98 2110.
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