The claimant alleged disability discrimination based on anxiety and stress. He submitted his own psychiatric evidence, but refused to be examined by any of the respondent's medical experts. The tribunal found that this refusal was unjustified, but declined to strike out or stay the proceedings, deciding that it would hear the claim without psychiatric evidence from either side.

The respondent appealed.

The EAT found that the Employment Tribunal had considered the wrong question when reaching its decision. The question was not whether it could decide the issue of disability on the basis of the existing evidence, but whether the respondent could have properly prepared his case without instructing an expert. In the case, medical evidence was necessary for a number of reasons: - to establish if the claimant was disabled for the purposes of the Equality Act 2000; whether the practice, criteria or procedures put him at a disadvantage compared to people who were not disabled; whether reasonable adjustments could have prevented any disadvantage and the remedy available.

The EAT found that the respondent had not been able to properly prepare his defence without the examination. The EAT granted an “unless order” requiring the claimant to present himself for examination by a certain date, with the consequence that his case would be struck out for non-compliance if he did not do so.