Mrs M Itulu v Respondent — 2017

Mrs M Itulu brought claims against the London Fire and Emergency Planning Authority in February 2015, including claims based on race, disability and sex, together with an equal pay claim. At a preliminary hearing on 30 March 2015 the issue of disability was not conceded, and the tribunal ordered medical evidence and later joint expert evidence so that it could determine whether she was a disabled person within the Equality Act 2010.

The hearing on 9 June 2017 was concerned with the respondent’s application to strike out the disability discrimination claims. The tribunal reviewed the history of the case and the claimant’s objections to the appointment and instruction of experts, including objections about Dr Cutting and Professor Povlsen. The claimant said she would not allow a physical examination by Professor Povlsen, despite relying on a physical impairment, and the tribunal recorded that she was prepared only to answer questions about her abilities during the relevant period.

Employment Judge Baron held that the claimant was doing all she could to prevent being examined by either expert, and that this was unreasonable conduct in the context of disability discrimination claims. The tribunal found that Dr Cutting’s early contact with the claimant did not affect his independence or suitability, and that no valid reason had been given for refusing a physical examination by Professor Povlsen. It concluded that a fair trial could not be held without the experts’ reports and the respondent’s ability to cross-examine on them.

Applying rule 37 and the overriding objective, the tribunal exercised its discretion to strike out the claims based on disability. The judgment states that the order did not affect the victimisation claim because that claim did not depend on the claimant being found disabled at the relevant time.