The internet can be a valuable source of knowledge acquisition, but the dangers of relying on medical information obtained by surfing the Web, without taking advice from health professionals, has been highlighted by the EAT’s decision in East of England Ambulance Service NHS Trust v Sanders.

Facts

The preliminary issue was whether Sanders’ symptoms of depression meant that she came within the definition of a disabled person. There was a report from a single joint psychiatric expert in which he concluded that the depression was mild and that it did not have a significant effect upon her normal day-to-day activities. Sanders’ evidence centered on the causes of her depression, but there was not much information about its effect. The judge and the employer’s representative asked Sanders about the dosage of anti-depressants she had been prescribed.

During an adjournment, the tribunal conducted internet research into Sanders prescribed dosage. When the tribunal returned it told both parties that from its research it appeared Sanders had been prescribed the maximum dose.  The judge asked Sanders whether she was aware she was on the highest dose of citalopram. He then asked if her GP had described her as being 'severely depressed' and when she did not respond he pressed her for an answer. The employer argued that as the tribunal had produced evidence from its own internet research that neither party had presented, and had assumed that the results of its own research were true, then it should disqualify itself, but the tribunal refused.

EAT

The EAT upheld the employer’s appeal. The tribunal had researched the Internet, without prior reference to the parties.  It was unclear why the tribunal had done so, since what was found was of dubious relevance, though it may have appeared it was trying to find evidence which might favour the Claimant. 

Having returned into the hearing, the tribunal told the parties what it had found out.  It then asked further questions, appearing to accept uncritically the accuracy and reliability of what had been discovered.  It rejected an application to disqualify itself, but did so in terms which indicated it was hostile to the employer, not least by appearing to criticise a consultant psychiatrist joint expert for not having approached his examination of the Claimant properly, when there was no evidential basis at all for this criticism.

A tribunal is not free to conduct its own research into the facts surrounding what had happened. The role of tribunal is to listen to evidence presented by both parties and make an impartial judgment. Assisting litigants who present their own case to give the best evidence they would wish to give should not be confused with making a case for them which they have never tried to make.  The case would be remitted to a fresh tribunal.

Comment

When deciding if an employee is disabled, then to avoid falling into the ‘trap’ that the tribunal found itself in, employers should: (i) consult with the employee to establish his or her understanding of their impairment and its effects on day-to-day activities; (ii) seek a medical opinion as to whether the employee is disabled outlining the employee’s own views and work-related information about any impact on the employee’s performance; (iii) analyse all the evidence in conjunction with the statutory document, Guidance on matters to be taken into account in determining questions relating to the definition of disability; and (iv) if any doubt remains about whether the definition of disability Is satisfied, seek further medical advice – don’t consult Doctor Google!

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