Criminal Law Cases - Free Case Database - Help With Law Essays, Law Dissertations and Law Coursework

A v B

[2006] All ER (D) 53 (Jan)

Court: EAT

Judgment Date: 24/11/2005

Catchwords & Digest


EMPLOYMENT - EMPLOYMENT TRIBUNAL - PROCEDURE - DISCLOSURE OF DOCUMENTS - CONFIDENTIAL DOCUMENTS - EMPLOYER SEEKING FULL DISCLOSURE OF EMPLOYEE'S PSYCHIATRIC REPORTS - EMPLOYMENT TRIBUNAL DECLINING TO ORDER FULL DISCLOSURE - WHETHER DECISION OF TRIBUNAL TO LIMIT DISCLOSURE FLAWED

The employee, who had a psychiatric history, had an episode of in-patient treatment in 1999, diagnosed as drug-induced psychosis. Thereafter, he continued to see psychiatrists as an outpatient, and when seen between 2002 and 2004 was found to have perceptual abnormalities, ideas of self-reference, mood swings and transient paranoid ideas. He was again admitted as an in-patient for psychiatric treatment between May and August 2005. The employee had been employed by the employer as an assistant gardener between May 2002 until February 2005. He subsequently complained of unfair dismissal, sexual harassment and discrimination, and 'whistle blowing'. The employer denied the allegations and asked for disclosure of medical records pertaining to any psychiatric condition or treatment relating thereto. Such disclosure was resisted. A pre-trial review was held, and the employment tribunal declined to order full disclosure, but ordered disclosure of the employee's medical records from the period January 2002 until the present time. The employer appealed against that decision.
It was contended that it had been plainly wrong not to order full disclosure of medical records given the full range of issues in play which included not only the merits of the various claims but also causation and compensation. The employer submitted that the tribunal had to have lost sight of the importance of the full medical records for all those issues where expert evidence was being relied on by the employee and would have to be met by the employer. On liability, it was contended that it was important to know the full range of the employee's problems so as to ascertain his ability to distinguish fact from psychotic symptoms; and on causation and compensation, that medical evidence might well be required and the whole psychiatric history would be important. The employee contended that the order of the tribunal had been an exercise of case management involving no point of law, and well within the tribunal's discretion.
Held - The appeal would be allowed. Whether to order disclosure against a party was governed by the overriding objective of the Civil Procedure Rules. The scope of disclosure would generally be limited to standard disclosure, which reflected a new philosophy that only what was really required should be disclosed. In the instant case, it was clear that neither the parties nor the tribunal had fully addressed the question of expert evidence and the issues upon which expert evidence either would or might be required. On the merits, expert evidence might be relevant as to whether the employee's psychotic symptoms could explain his allegations of abuse and as to whether his psychiatric conditions were likely to explain his failure to report abuse earlier. If expert evidence were to be relied on, it would be difficult to see how the employer's advisers would be able properly to meet the case unless they had access to the same records that the employee's expert had seen. In the circumstances, the tribunal's decision would be set aside and it would be directed that a case management discussion take place at which the question of disclosure of medical records prior to January 2002 should be considered afresh.