Employers dealing with absence and disability cases sometimes face the problem of an employee refusing to be medically examined by a doctor chosen by the employer. The recent case of Communications Headquarters v Bacchus shows what can happen if the employee continues with this approach during tribunal proceedings.

Mr Bacchus was a press officer at GCHQ who went off sick, then resigned and claimed disability discrimination (acute anxiety). Although he obtained his own psychiatric report, he refused to see any of the three medical experts suggested by GCHQ during case management discussions. The Tribunal then ordered Mr Bacchus to meet with a particular doctor but again he refused and his refusal was found to be unreasonable.

The EAT found that GCHQ was unable to properly prepare its case without its own medical expert. It therefore made an “unless order” requiring Mr Bacchus to present himself for examination with a named doctor by a certain date. His case would be struck out for non-compliance if he failed to do so.

The EAT made the point that, although it was too late to do so in this case, the preferred approach in these circumstances is to instruct a joint expert with a jointly agreed letter of instruction.

Julie Keir
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