Getting medical evidence about discrimination in Scotland

This advice applies to Scotland

Medical evidence

It is necessary to obtain medical evidence for various reasons including to prove that you are disabled under the Equality Act or to show the (potential) impact of reasonable adjustments.

You can choose whether to use:

• A joint expert report
• A report from your own GP or consultant
• Your medical records

Joint expert reports

A joint expert report is a report written by an independent medical specialist where they assess your health. You and your employer agree on which expert to use, the expert will examine you and look at your medical records. They send a report to you and your employer.

This is the strongest sort of evidence, but it can be costly (several hundreds of pounds). You’re likely to get it once you’ve seen your employer’s defence to your claim (the ET3) and you know they deny that you have a disability. You don’t have to agree to get this sort of evidence — it’s your choice what you use.

Joint medical evidence is usually ordered by the tribunal (if you agree to get it). You should check the tribunal order to make sure you follow it. It might say you have to:

• Make sure the request for the report asks specific questions or covers specific issues, for example about the impact of your disability
• Agree the wording of the letter to the expert with your employer. This includes any statement or other document you include with the letter
• Agree who will provide the report
• Agree who will pay the fees, or how they will be shared
• Make sure the report is sent to the employment tribunal by a particular date
• Make sure that the report is sent to your employer at the same time it is sent to you
• Agree how you will ask any follow up questions

The letter to a joint expert is usually prepared by the employer’s representative, but you should check it to make sure it covers what you need it to.

Fees and timing
You should always make sure you know if you will have to pay a fee for a medical report, or for obtaining medical records. Make sure you know who will pay any fees — ask your employer to share the cost of the report with you.

If you need the report by a certain date, make sure that the GP or other medical expert knows that, and that they will be able to give you the report by that date.

Report from your own GP or consultant

This will be enough in many cases to prove that you have a disability or injury. Your GP may charge a fee but it will be less than a joint expert report.

Medical records

You may just be able to use copies of your medical records, but they only really confirm that you have seen your GP, and what you’ve been treated for. It won’t explain the effect of the symptoms on your daily life.

Disclosing your medical records to your employer and the tribunal

Even if you don’t want to use your medical records as evidence, you might have to disclose them. If the tribunal thinks that your medical records are relevant to any of the issues it has to decide then it can order you to disclose them — and strike your case out if you refuse.

In a disability discrimination case your medical history will always be relevant and the most important evidence about your medical history is your medical records. Therefore your tribunal is likely to order that you disclose your records.

Redaction of medical records

If there is information in your records which is not relevant to the issues in the case (eg an unrelated medical condition) it is sometimes possible to ‘redact’ the records. This means blanking out (with a black pen) the parts of the records you don’t want to disclose.

However this can lead to objections from your employer — if they can’t see what is in the records they cannot know whether it is relevant.

It is possible to ask the tribunal to look at the full record, compare it to the copy you would rather send the employer, and ask them if you can send the redacted version. To do this, write to the tribunal explaining

• Whether you accept that you have to disclose your records at all (ie are they relevant)
• If records must be disclosed, why you object to disclosing certain parts
• Enclose a copy of the full record and the redacted version
• Ask that your obligation to disclose the records be limited to the redacted version

If the tribunal does not agree your request you may not be able to continue with your claim.

Template letters

These letters are examples and should be amended to fit your circumstances as required.

Example letter to your own doctor

Dear Dr Gibbons,

I’m a patient of yours at Forest View surgery.

I’m bringing an employment tribunal claim against my employer Jungle Books Ltd.

My claim is about disability discrimination. I need to get medical evidence to show my employer and the tribunal that my arthritis meets the Equality Act definition of disability.

Please let me know if there will be a fee before you prepare the report.

I need the report to include:

- a description of the symptoms I’m being treated for

- a description of the treatment I’m receiving

- a description of the symptoms I would have if I stopped receiving the treatment

- your diagnosis of the conditions I have

- how long I’ve had the symptoms and conditions, and how long they’re likely to last

- whether my symptoms are likely to get worse in future

- a complete set of copies of my medical records from 2010, when I first came to the doctor with symptoms of arthritis

Please can you send your report to me by Thursday 18 October. Let me know if this won’t be possible.

Thank you for your help.

Yours sincerely,

Richard Proctor

Other questions you might need to ask: reasonable adjustments claim

You may need evidence to show the disadvantage you were caused and to show that the adjustment you asked for would have helped you.

Other questions you might need to ask: discrimination arising from disability

You may need to show the link between your disability and the reason you have been treated less favourably.

Template letter requesting medical report about the impact of discrimination

This template letter is when you need medical evidence just about the impact of discrimination. It can help to justify your claim for injury to feelings or claim compensation for personal injury.

Dear Dr

[your name, address and date of birth]

I am a patient of yours at [ name of surgery ] surgery.

I am bringing an employment tribunal claim against my [ former] employer [name of employer] because [brief description of what happened]

I am writing to see if you would provide me with a short report describing the impact of what happened on my health.

Please explain:

- the symptoms I have

- The treatment I am receiving

- How long the symptoms are likely to last

- whether, in your opinion, these symptoms were caused or contributed to by what happened at work.

Please let me know if there will be a fee before you prepare the report.

Thank you for your help.

Yours sincerely,

….

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