Specialist medical opinion and employment tribunal cases

goldersboy

I have had RA since I was 27 I have also had a heart attack and am now nearly 60 . I am embroiled in a very difficult employment tribunal case that centers around discrimination concerning my disability. My former employer a health charity has tried to defend it self by saying that they had no knowledge of the disability . They now say that I am am not disabled as termed under the disability act and are now arranging for me to go to their specialist for assessment. I would like to provide my own specialist - does anyone have similar experience and knows of anyone who could help me. I am back in court at the end of June.

frogmorton

BLIMEY

Good to meet you Goldersboy, but this is an interesting one!

I hope one of the guys on here has some experience of this sort of thing, I don't but just wanted to say don't expect a reply straight away.

Your employers are a bIg organisation I take it? Was it not on your original application form your health issues?

Best wishes

Toni x

traluvie

Hi Goldersboy...

I will PM you an organisation that will be able to help and advise you..
How long have you been employed there?..
Did you state any problems in your application form?

goldersboy

Hi I had worked for them for 11 years and they referred me to a specialist when I had a very severe flare up - they are no longer declaring no knowlwdge what they are trying to do is to say that under section 1 of the disability act that I am not disabled.

Thanks so much I am grateful for any help.

[Deleted User]

The Disability Act does not exist as it was replaced by the Equality Act 2010

You may also like to look at the government website regarding dismissing a disabled person. Gvt Site

The Act defines a disabled person as someone who has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

Moderator Z

RichC

Moderator...
The DDA is still used where the acts of discrimination wholly occurred prior to the Equalities act implementation on 1st October 2010.
The Equalities Act is used where they occurred wholly after 1st October 2010 or where a continuing act of discrimination straddle that date.
There are various other exceptions.
The time it takes to get to Tribunal means we will see the DDA still being used for some time yet.

It appears that the definition of disabled is very similar in both acts anyhow. But good links there .

Best advice is get an employment specialist ,as this is not something you can be expected to represent yourself on. It is extremely complex area of Law .
Have a look on this site CLS to see if you qualify for legal aid and to find an employment specialist.
Definition of Disabled for DDA

Let us know how you got on.

Rich

mariefab

Hi goldersboy

Did you sumbit your ET1 before or after 1st October 2010?

goldersboy

Yes, my ET1 was submitted in May 2010 so my case is still under the DDA. All the posts put up have been very helpful and I'm really grateful.

However, my case is actually a lot further on in ET terms. We have already had 3 CMDs, a judicial mediation (failed) and a PHR on other topics than disability. We now have a PHR listed for the end of June for 2 days purely on whether or not I am disabled under the terms of the act.

The other side have had a vast amount of medical evidence for both my conditions for over 6 months and have only now decided to go for a PHR. We think this is because they are desperate as they lost the last PHR and are trying to string out proceedings so that I will be priced out as I am a Litigant in Person with a Direct Access barrister for advocacy only.

What I really need to know is do I need to get my own expert medical evidence (which I can't afford to do) or should my long standing ra be enough for me to qualify as disabled? Like I say, there is a vast amount of evidence I have already produced, my ra is progressing, I see a rheumatologist every 3 months. Although the ra is in remission I have been a blue badge holder in the past and it has been so severe that I could hardly walk and was hospitalised for respite. Thanks again to everyone.

RichC

Have a look at this link on the definition of Disability for the DDA from the Equality and Human Right's commission .. it might help you see if your evidence is enough..
EHRC
It also might be worth giving them a ring

It's odd they are asking you to go for an appointment with their specialist now as i would have thought that the issue was your health and disability issues at the time of the act of discrimination and not now , although part of the definition is :
"Long-term means that an effect of the impairment has lasted, or is likely to last, 12 months or more from the onset, or for the rest of your life."

This is such a specialist subject that does rely heavily on case law /previous tribunal decisions , and at the end of the day it is the Tribunal who will have the final decision.

For a Health charity to even be accused of Disability Discrimination would be damaging to them in the extreme , especially if they have the two ticks symbol.(so hence their fighting it to the end.)
Best of Luck
Rich

mariefab

Goldersboy, from the information you've posted I think it's pretty likely that you'd qualify as having a disability under the DDA.

It's much easier to qualify as a person with a disability under the DDA than it is to qualify for any kind of disability benefit.
For example; I have RA and although there isn't the smallest possibility that I'd be entitled to any kind of disability benefit I've had confirmation (from Occy Health) that I definitely qualify as having a disability under the Act.

As you are aware; 'a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.'

Case law shows that, in order to establish whether this applies in your case, a Tribunal should normally use the following 4 questions:
1. Does goldersboy have an impairment which is either mental or physical?
2. Does the impairment adversely affect his ability to carry out normal day to day activities?
3. Is the adverse effect (upon his ability) substantial?
4. Is the adverse effect (upon his ability) long-term?

It's important to remember that, as RichR indicated, the Tribunal will be seeking to establish whether you had a disability at the material time. This would be the period covering all of the acts complained of in your ET1 and they would usually set out the dates of the duration e.g. from 18th September 2008 to 17th March 2010.

The Tribunal judge, or panel, will almost cetainly not be medically qualified, therefore the decision will be evidence based. So, where possible, you'll need to show:

1. Impairment
Rheumatoid Arthritis. You could ask your GP, rheumatoligist, rheumy nurse to write a letter confirming your RA diagnosis. You could also provide the 'living with rheumatoid arthritis' booklet available on this site.

2. Adverse effect on everyday activities
Here you describe what the effect would be without treatment. See sections 4 & 6 of DDA Schedule 1 below.

http://www.legislation.gov.uk/ukpga/1995/50/schedule/1

So, the effects would be pain, inflammation, immobility etc.
Your GP's notes from the relevant time including any medication or other treatment prescribed would be helpful.

3. Substantial
Because RA is a progressive condition, you satisfy the substantial element as soon as any effect is more than trivial or minor.
See sections 5 & 8 of DDA Schedule 1.
Helpfully the Guidance specifically mentions RA.

http://www.equalityhumanrights.com/uploaded_files/guidance_on_matters_to_be_taken_into_account_in_determining_questions_relating_to_the_definition_of_disability.pdf

4. Long-term
RA is a recurring condition so periods of remission are irrelevant. (It also means that I qualify,in this regard, even though I was only diagnosed about 4 months ago.)
See section 2 of DDA Schedule 1

If you decide to see their specialist you should bear the above in mind. It would be normal practice in these circumstances for whoever has arranged for the specialist's appointment to send him/her a list of questions to be answered in his/her report. You should ask the Respondent if this is the case and if so that you should be provided with a copy of the list of questions before the appointment.

You probably have a lot of relevant documentary evidence already, but it's worth checking it over to see if there are any gaps you need to fill to help the Tribunal to answer the 4 questions. In this context there's no such thing as too much information.

It can also be a matter of credibility at a later stage of the case.
From what you've already posted I assume that it has been decided that your former employer could reasonably have been expected to realise that you may have a disability. Score 1-0 for you.
If you can show at the next PHR that they already had enough evidence that you have a disability your score will be 2-0.

I don't know what you heads of claim are (direct discrimination, unfair dismissal, failure to make reasonable adjustments etc.).
If it's a direct discrimination claim then you'll probably be aware that you need to first show evidence of discriminatory acts. If, and only if, the Tribunal finds that you have provided enough evidence of this the burden of proof is then shifted to the respondents for any possible explanation.

It's likely that as the case progresses there are going to be 2 different versions of what occurred and the Tribunal's task will be to decide which version (yours or the Respondents) they find more credible when making their decisions. If by that stage the Tribunal has already found that, in spite of overwhelming evidence to the contrary, the respondents resisted every indication that you had a disability this could negatively impact their perceived credibility.
Here's another potentially useful link:

http://www.equalityhumanrights.com/uploaded_files/drc_employment_code.pdf

One more point. An important change to the meaning of 'likely' has been established by case law.
It used to mean 'more probable than not' which put Tribunals in the unenviable position of trying to work out from the available evidence whether or not something was >50% likely to occur. The meaning of 'likely' has been changed to 'could well happen' a lower threshold which is much easier to assess.

If you'd like to give us some more information about the type of case you are undertaking we may be able further.
Hope this helps.
Marie

goldersboy

Thanks very much Marie and everybody else who has replied. This really has been incredibly helpful. I'll reply more fully over the w/end but I just wanted to say how grateful I am for your help in the meantime. Cheers. Goldersboy

goldersboy

Thanks to everybody for such fantastic advice before. Long time since I’ve posted as my case has been dragging on although looks like it may be coming to an end … but, for the moment, there’s still a PHR on S1 of the DDA 1995 listed for a 2 day hearing next month. This was postponed from June as the Respondents didn’t want to go In case it goes ahead, can anybody help with the following legal points please?

The ET ordered the hearing to be about S1 only and not about knowledge. The Respondents had been talking about bringing along the CEO as a witness but decided against this when it was ordered to be for S1 only. The Rs were ordered to provide 2 expert medical reports – one for my ra and the other for my heart condition (I had a heart attack several years ago, probably related to my ra, whilst I was employed by the Rs). I was diagnosed with stress-related angina 2 years ago.

Having got the reports, the Rs decided not to rely on or disclose either the ra report or their instructions. Obviously, the report is abysmal for them – which is not surprising after 33 years of suffering from ra. So, on the ra all they have is over 300 pages of detailed medical evidence of a progressive disease from me.

For the heart they have provided the report and have listed their instructions as a document in the bundle but have not yet sent them to me. I can ask for them now can’t I? The report basically says I am cured, there is no damage to my heart and I haven’t been affected at all by it … but I should still keep taking lots of pills every day and receive cardiac care regularly … go figure. I know they don’t have to disclose the ra report but I’d like to get it. Can I contact the doctor directly to ask for it? Also, the heart man refers to my ra in his report – can I try and get it disclosed that way? I’d like to try and get an order for it as the ET are thoroughly hacked off with the Rs and may just grant it.

For the ra, they then decided to call the CEO as a ‘witness of fact’ instead of providing medical evidence. Unfortunately the CEO had booked a holiday for the day of the PHR when they found out there was a possibility they might be called They have provided a photo of a block of granite as evidence that they said the CEO saw me lift up (don’t ask!). And they have recently increased their ‘witnesses of fact’ to three. None of these witnesses are medical experts so what relevant evidence to S1 can they provide? Except to say basically he didn’t look disabled to us – which starts to stray into knowledge. Any suggestions how to address this?

Finally, this organisation are accredited to the Two Ticks scheme but when I asked them to disclose details of the accreditation, they lied and said they weren’t. So I asked the question again – this time they said they were accredited but had never implemented it so it didn’t count! They then took the symbol off their website but, because they are sloppy, they left lots of pages with the accreditation news and under equal opps, etc. It was also reported widely in their own and other publications. I think that this is disgraceful – again any suggestions how to address this as I think the issue should be explored. They have done this because I should have been guaranteed an interview for a particular job under the scheme.

Phew – this is long! Again, everybody’s help has been invaluable to me so far and is greatly appreciated as I am running this case by myself. My case only highlights how badly employees with ra can be treated and how the condition is completely misunderstood so I’m grateful for any help that could be useful for all of us. Thanks a lot to all of you.

Best wishes Goldersboy

mariefab

Were the Respondents ordered to provide the RA expert medical report by the Tribunal?
If so, do you have any documentary evidence that the Tribunal ordered this?

I ask as Tribunal's orders must be complied with and the Respondents can't simply decide not provide it because they don't like its contents.

goldersboy

Hi Mariefab - I am so pleased to hear from you - your advice really is fab as anybody who's read your posts would know!

Oh yes - the medical report from both experts in ra and heart were definitely subject to Orders as part of many others following the CMD in March. The Rs had to get several extensions of time as they 'couldn't find' experts - probably once they saw my medical evidence. The ra man who examined me knew what he was seeing cos my inflammation markers used to be about 180 ... so it's no surprise they couldn't use his report. And the heart man said to me that I'd obviously had a really terrible time with ra.

Anyway, re the Orders, the ET know that they haven't given the ra report to me and won't be relying on it cos I've told them. Whether they've given it to the court and so complied with the order I don't know. I'm v confused about all this - nobody seems to be bothered that a report that was ordered hasn't been produced simply cos the Rs don't like it. My legal beagle mates say well they don't have to disclose it unless I can find a way round that - as I said in my last post.

I guess if I had a solicitor they would have been asking the Rs to concede disability? Can non medical experts i.e. 3 witnesses of fact from the org really gainsay all the medical evidence already produced? I am sure that these will be unwilling witnesses, who didn't know me well or work with me for long and that there is nothing they can say except that he didn't look disabled to me. In the context of a S1 hearing, as I understand it, without a medical expert for the Rs, won't they be deemed to be largely irrelevant?

Incidentally, I have threatened costs for the hearing and the Rs are not happy about that at all. They are now saying that they have never disputed the fact that I have ra, etc (they certainly did pre-ET) but that my 300 pages of medical evidence are not conclusive ... This all seems crazy to me. There are many people still working for the org who knew me when I couldn't walk and was hospitalised - tho I doubt they'll be witnesses Your comments as always will be very gratefully received! Thanks a lot. Best wishes Goldersboy

mariefab

The task of a Tribunal is to make 'findings of fact' from all the available evidence (oral and documentary) then base their judgements on these using the relevant legislation.

As the PHR is to be solely on the subject of S1 (at the material time) I would expect the Tribunal to only be interested in information that would help them to answer the 4 questions in my earlier post. i.e. (1) Did you have a physical or mental impairment (3) which had a substantial (4) and long term (2) adverse effect on your ability to carry out normal everyday activities?

If, at the time of the acts complained of, all 4 answers were Yes then the Tribunal will find as fact that you had a disability and therefore qualify for protection under the Act (DDA).

You claim you were disabled and your former employers and some of their employees deny this. I assume that none of you are doctors, so these are just unqualified opinions.

The Tribunal could have decided to let each side present the evidence their opinions are based on; after which the Tribunal would have found as fact whichever opinion they found most valid and based thier subsequent judgement on that; but that route risks the judgement being reviewed/appealled/overturned leading to avoidable wasted time and costs.

So, in these circumstances, it's far more efficient to order an expert medical opinion. (I've never heard of a judgement being successfully challenged when a Tribunal has used an expert medical assessment to determine disability.) Sometimes, after the respondent sees the report, they admit that the claimant is disabled making the PHR unneccessary and the claim then progresses to the main hearing or is settled by a compromise agreement (or COT3 if ACAS is involved).

Now, in your case the tribunal ordered 2 medical reports which was very sensible because if you qualify on either account you're covered.

I suggest that you immediately write a playing dumb letter to the respondent's representative asking for copies of the heart report and the RA report and both sets of instructions/questions to be sent to you before the PHR. Keep it that simple, don't add any other queries you may have to it. Send it by recorded delivery. Keep a copy and use track and trace to print off proof of delivery to take to the PHR along with any response.

When you get to the PHR make sure to take any evidence you have of the appointment you had with the RA medico (appointment letter, statement from anyone who accompanied you stating the date, time etc.) and anything you already have from the respondents suggesting that they've decided not to use the report.

I'd be fascinated to learn on what grounds you, your former employers or the legal beagle mates you mention believe that the Tribunal order doesn't have to be complied with in regard to the RA report. Complying with Tribunal orders isn't merely desirable, best practice or indeed optional.
It simply must be done.

If the respondent turns up at the PHR without the RA report the Tribunal is not going to be best pleased. Be ready to ask the Tribunal to make a wasted costs order against them which will almost certainly be granted.

P.S. The 2 ticks thing is more a matter for the Jobcentre than the Tribunal.
Marie

goldersboy

Hi Marie

Thanks very much for all your great advice - really really helpful again. I especially welcomed your advice on the order for the experts. I wrote directly to the court last Friday, outlined what had happened, quoted the order which was to serve both reports by a certain date and outlined briefly what had happened and that the Respondents would only disclose the heart report. I asked for the whole order to be completed in respect of both sets of instructions and reports and sent a copy of my letter to the Rs.

They replied to the court yesterday and they are NOT happy. They now say that the order that the Rs 'must serve their medical reports' was plainly only drafted that way by the judge on the assumption that the Rs would be relying on both reports. And that, because they don't, it's privileged.

They also say that their 3 witnesses of fact must be called because they're going to say that they couldn't tell that I was disabled and that they're needed because 'the Claimant appears to believe that the tribunal should proceed on the assumption that whatever he says about the effects on him should be assumed to be true' and that that is 'misconceived'. I am very concerned by this statement as they are basically saying that I will lie about the effects - as if I'd need to after 33 years of ra!!

Lastly, I asked the Rs for the heart instructions to be sent to me immediately. They have refused and will not provide them until the bundle is agreed - it won't be agreed because they will never agree one! I think that this is grossly unfair on a litigant in person as I need a lot more time to prepare.

What do you think? Is this normal behaviour - is it possible that the judge did mean that they should only produce it if they were to rely on it? Again seems crazy to me - especially as the judge whose words they are interpreting is very, very experienced and senior and already can't stand the other side cos they keep writing pointless letters to the court and are using court time to try and threaten me into submission.

Any thoughts welcomed and thank you so much again.

Best wishes

Goldersboy

mariefab

Who is this 'they' you speak of who's making these assumptions about the Tribunal Judge's motivations?
Is it an employee of the Respondent?

I'm asking because a solicitor, or someone with experience in employment tribunals, would know that the Tribunal ordered the medical reports so that they could be used by the Tribunal Judge when deciding the S1 issue.

goldersboy

Hi there - thanks for replying so quickly. The 'they' are actually the Rs solicitors - who are a big City law firm - difficult to believe, I know. Despite that, they're not v good - but then I guess they are just reflecting their clients' instructions and attitudes.

This firm were engaged by the Rs as their company solicitors several years ago - not for employment law specifically. Another firm has been engaged as their company solicitors, instead of the ones I'm dealing with, over a year ago. I know that the organisation and solicitors are now not happy with each other at all - for various reasons.

I found out from disclosure almost a year ago that this firm were actually advising their clients about how to 'deal' with me whilst I was still employed and before I had raised a grievance. From disclosure it also turned out that their solicitors had written a letter for the Rs to send to me re my grievance (which included disability discrimination) which basically said that they wouldn't investigate it and would I like to be made redundant instead? Honestly.

The Rs then refused to engage with me directly, whilst I was off sick with ra, and would only communicate via solicitors - even though I was still an employee. I was v upset by all this as I worked for this organisation v successfully for over 10 years and I was not a troublemaker.

Incidentally, I know that the solicitors told the Rs many months that they had lost the case. But the Rs will not give any ground at all re disabiity despite the tons of great medical evidence I've provided and the fact that they are the ones who referred me to an ra specialist originally - all of which is in the evidence already submitted - I guess because they are a health charity. The case is going v badly for them and I suppose they are terrified of having to concede disability at all - hence all these crazy tactics.

Anyway, sorry this is long but there's no way to be brief! The Rs' solicitors are now throwing absolutely everything they can at me and being v aggressive and unhelpful in advance of the PHR. If they had any sense they would. of course, concede the S1 and I suspect this is what they've been advised by their solicitors. Oh well, there we go! Thanks again.

Best wishes

Goldersboy

mariefab

I'm shocked that solictors are behaving this way.

Could you please post the rest of the 'must serve their medical reports' Tribunal Order here?
Just so that I can check it for any possible, but unlikely, ambiguity.

goldersboy

One order is: 'It is ORDERED that the Respondent must nominate their medical experts in respect of each disability relied upon, namely the heart condition and rheumatoid arthritis by (date)'.

Second re this is: 'It is ORDERED that the Respondent must serve their medical experts' reports, which are to be prepared at the Respondents' cost, by (date). If the Respondents seek an extension of time for the preparation of medical experts reports, it must apply as soon as possible'.

In the event, as I've said before, both nominations and service were delayed by many weeks. I don't think there's any ambiguity there either.

Cheers.

mariefab

None whatsoever.
What's more, regardless of the intructions from their clients, the solicitors must be aware of the potential consequences of refusing to comply with the Order.

Their 'privilige' point is nonsense too and they must know it.
The RA report contains sensitive medical information about you and therefore you would be entitled to see it even without a Tribunal Order simply as a data protection issue.

They must be seriously annoying the Tribunal by now. I suggest you allow them to keep it up while innocently bringing any further shenanigans to the Tribunal's attention.
If they keep up this kind of behaviour they may eventually find themselves fined and debarred from the rest of the Tribunal procedure.

When is the PHR?
Come back here a couple of days before with any updates and I'll prepare a statement to help you hit back at them at the PHR if you like.