This was considered by the Employment Appeal Tribunal (EAT) in the recent case of City Facilities Management v Ling.
Mrs Ling was dismissed by her employer on the basis that she was no longer able to do her job. Mrs Ling had been off sick for more than six months suffering from depression and anxiety.
Mrs Ling brought claims for unfair dismissal and disability discrimination against her employer in the employment tribunal.
The employer denied that Mrs Ling had a disability for the purposes of the Equality Act 2010. The burden of showing disability lies squarely on the Claimant and it is for the tribunal to determine the matter for itself on the balance of probabilities.
At a preliminary hearing (as they are now known) the employment tribunal judge (not the Respondent) decided that obtaining expert medical evidence of Mrs Ling's disability was essential. Mrs Ling was not in a financial position to be able to pay for 50 per cent of the cost of the expert report the judge ordered that the employer should pay for it in full.
The employer appealed. The EAT held that there was no need for expert evidence at all in this case. The EAT said that Mrs Ling herself could give adequate evidence on her condition and the effect it had. In most cases the EAT said the impact of an 'impairment' was something that the Claimant was best qualified to describe. The EAT also said that as a matter of principle it would be wrong to require an employer to pay to help support a weak case against it.