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Employment Law – Disability Discrimination – Tribunal Procedure. R.T Coopers Solictors

The case of McGuire v Centrewest London Busses Ltd [2007] concerned an employee who had been employed as a bus driver until his dismissal, which was justified at the time as being on medical grounds. The effective date of his dismissal was from the 4th of May 2005. On the 3rd of August, he presented a claim before the employment tribunal alleging that he had been unfairly dismissed. He also claimed that he had been discriminated against on the basis that he had a disability.

The employer denied the fact that he was disabled within the meaning of the Disability Discrimination Act 1995. Following a discussion on how the case should be managed, the employee was ordered to show the medical evidence upon which he relied to support his statement that he was disabled. During that discussion the employee was represented by a firm of solicitors, K, despite not mentioning K on his claim form. The order said that he had to show the evidence by no later than the 27th of January 2006. In addition to this, by the 3rd of February, he had to also have disclosed his medical records.

The merits of both the unfair dismissal claim and the claim for disability discrimination were due to be heard at a merit hearing listed for the 10th of May. On the 17th of February, the employer's solicitors wrote to K stating that no medical records had been disclosed. Further correspondence followed without any response from K. As a result, the employer applied to have claim for disability discrimination struck out on the basis of the following:

§ Failure to comply with the order in respect of the medical evidence that should have been supplied;

§ The employee’s general conduct of the proceedings; or

§ His failure to actively pursue his own claim.

Various attempts were made to contact the employee as well as K. Following the failure to respond, the tribunal struck out the disability discrimination claim on the 18th of April.

Subsequently, K made an application for a review and requested that the disability claim be restored. Meanwhile the hearing for the 10th of May was still scheduled to go ahead. At that hearing, a differently constituted tribunal made a number of case management orders. A review hearing was fixed to be held before the original tribunal on the 14th of June, and the employee was ordered to provide his medical evidence by the date of that hearing.

If the disability discrimination remained an issue, conditional directions were given for the service of the employer's medical evidence in rebuttal and a three day merits hearing was listed for the 22nd of August. At the review hearing on the 14th of June, the chairman refused the application, on the grounds that:

§ The employee's medical records had still not been disclosed to the employer;

§ The unlikelihood of the trial date of the 22nd of August being met if the review was granted;

§ The dilatory approach of the employee and his solicitors (although there was a degree of confusion regarding the basis on which K had been acting for the employee); and

§ The failures of both to respond to the original strike-out application.

The employee subsequently appealed. In his appeal, he submitted the following:

§ That the chairman had failed properly to examine the balance of prejudices as between the parties;

§ That the chairman had failed properly to examine whether a fair trial would have been possible on the 22nd of August or later.

§ The striking-out of the disability claim had been a disproportionate sanction and the chairman had failed to consider the possibility of a lesser sanction being imposed.

The appeal would be allowed.

In this case, it was held that the chairman had failed to consider properly all relevant factors in the application for review. No consideration had been given to sanctions short of a strike-out. It would have been a simple matter for the chairman to have required the employee to sign a consent form for the release of his medical records at the review hearing on the 14th of June, particularly in the light of the directions that had been given at the hearing on the 10th of May.

In addition, there had been no finding that the employer would have been prejudiced in those circumstances, thereby rendering a fair trial on the 22nd of August impossible. Therefore, the review application would be remitted to a different chairman for fresh consideration.

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