Employment law

By Martin Edwards, Mace & Jones, Liverpool

Human rights and expert evidenceDe Keyser Ltd v Wilson (2001) IRLR 324This fascinating Employment Appeal Tribunal (EAT) case illustrates the complications of human rights law, and the potential contradictions between the right to a fair hearing and the right to respect for private life.An employee claimed constructive unfair dismissal, contending that she had a depressive illness which had been caused by work-induced stress and, in particular, the attitude of her area manager.

Her GP supported that view, but the employer contended that her depressive illness had not resulted from work-induced stress, but rather from various factors and events in her private life.

At a directions hearing, she agreed to be seen by an occupational health specialist appointed by the employer.

The employer was represented by a consultant, whose brief IT3 (defence to the claim) seems not to have impressed the EAT.The consultant sent a letter of instruction to the specialist making it clear that the employer questioned both the extent of the employee's illness and its cause.

The letter included details of her private life which the employer believed had caused or contributed to her stress and asked that a critical examination of her GP's finding that her illness was entirely attributable to her employer's alleged actions be carried out.

When the contents of that letter were brought to the attention of the tribunal, it concluded that the letter to the specialist contained material which was irrelevant and abusive and struck out the IT3 on the grounds that the proceedings had been conducted in a scandalous manner and in breach of the Human Rights Act 1998.

The employer appealed and the EAT set aside the order striking out the IT3.

So long as the employee persisted with the complaint that she suffered stress or otherill-health by reason of the employer's actions, she could expect to be required to submit herself for relevant and appropriate medical examination.

This did not infringe any human rights.

Her right to privacy was in opposition to, and needed to be qualified as far as necessary by, the right of both parties to have a just trial of the issues between them.

The fact that one doctor had been instructed in the manner which gave great offence at several levels did not preclude the later and correct instruction of another doctor.

The tribunal had the power to direct that there should be no examination by the doctor to whom the offensive instruction had been given and no offensive instruction of some other doctor.

The tribunal also erred in failing to ask whether a fair trial of the issues was still possible.

In a case not involving deliberate disobedience or failure to perform an order of the court, whether a fair trial is still possible was a crucial factor in relation to a discretion to strike out the whole of the case.

Here, a fair trial was still possible, even if the letter of instruction to the specialist was scandalous.

Thus, striking out was entirely disproportionate.

The tribunal was also wrong to hold that references to aspects of the employee's personal life amounted to a breach of her right to respect for private and family life.

No public authority was concerned, none of the material complained of was confidential and the recipient doctor would have been bound by conventional medical confidence.

The letter of instruction was to be seen by the employee's solicitors and she was free to resist its being acted upon in the sense of its leading to a requirement upon her to attend for examination.The EAT noted that it had had occasion in the past to comment on the conduct of unqualified representatives - such as the firm of consultants which acted for the employer in this case - who 'are liable to no disciplinary proceedings as being members of no professional body'.

The EAT said that: 'the existence of a body of representatives who are untrained and not susceptible to any professional discipline makes it especially important that some guidance should be given as to how expert evidence should be collected in employment tribunal cases.' The EAT was willing to set out guidelines, while not wishing to encourage the use of expert witnesses.

But where experts are necessary, the arrangements for them need to be as economical and effective as is consistent with fairness and convenience.

Pending development of more formal rules (including provisions as to the costs involved), the EAT said that: l Careful thought needs to be given before any party embarks upon instructions for expert evidence.

It by no means follows that because a party wishes such evidence to be admitted, it will be.

A prudent party will first explore with the tribunal whether, in principle, expert evidence is likely to be acceptable;l Save where one side or the other has already committed itself to the use of its own expert (which is to be avoided in the absence of special circumstances), the joint instruction of a single expert is preferable;l If a joint expert is to be instructed, the terms which the parties need to agree include the position as to who will bear that expert's fees and expenses;l If the means available to one side or another are such that it cannot agree to share the expert's fees or expenses, or if it simply refuses to pay or share such costs, the other party can reasonably be expected to prefer to require their own expert.

Even in such cases, the weight to be attached to that expert's evidence may be increased if the terms of his instruction have been submitted to the other side, at least for comment, ahead of their being finalised for sending to the expert;l If a joint expert is to be used, tribunals may fix a period within which the parties are to seek to agree the identity of the expert and the terms of a joint letter of instruction, together with a date by which the report should be made available;l Any letter of instruction should specify in as much detail as can be given, any particular questions the expert is to be invited to answer and all the more general subjects which he is asked to address;l Such instructions should, as far as possible, avoid partisanship and tendentiousness.

If the expert is asked to make assumptions of fact, they should be spelled out.

The expert's principal and overriding duty is to the tribunal rather than to any party;l Where a joint expert is to be used, the tribunal may specify, if his identity or instructions have not been agreed by a specified date, that the matter is to be restored to the tribunal;l The tribunal may give directions in relation to issues which an expert is or is not to address himself;l Where there is no joint expert, the tribunal should, in the absence of the party's agreement, specify a timetable for disclosure or exchange of expert reports and any timetable may provide for the raising of supplementary questions and for the disclosure or exchange of answers in good time before the hearing;l In the event of separate experts being instructed, the tribunal should encourage arrangements for them to meet on a without prejudice basis with a view to their seeking to resolve any conflict between them and producing a schedule of agreed issues and of points of dispute between them;l If a party fails, without good reason to follow the above guidelines, the tribunal may wish to consider whether there has been unreasonable conduct within the meaning of rule 12(1) of the tribunal procedure costs rules.