WHEN YOU DON’T CALL THE OTHER SIDE’S EXPERTS TO COURT, BUT WANT TO CHALLENGE THEIR CONCLUSIONS: ANOTHER CASE

The post yesterday dealt with a case where the claimants failed in its attempt to go behind the defendant’s experts in a case where the claimants’ expert was never disclosed. Similar issues were considered in the interesting decision of the employment Tribunal in Jhuti -v- Royal Mail Group Ltd, a copy of that decision is available here. Ms_K_Jhuti__vs_Royal_Mail_Group_ltd

There is an interesting discussion in relation the respondent’s strategy of not calling expert evidence of its own, and not requiring the claimant’s experts to attend the hearing.

 

“In those circumstances, given that the reports were compiled by medical and employment experts (which neither counsel nor the tribunal are), we do consider that it would be inappropriate for us to go behind those conclusions, in these circumstances where the respondent could have called the experts to challenge those conclusions but chose not to do so.”

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THE CASE

This is an employment case relating to the claimant having made a protected disclosure whilst working for the respondent. It has already reached the Supreme Court, in a judgment here  in Royal Mail Group Ltd v Jhuti [2019] UKSC 55. That judgment concludes with the very succinct sentence ”  if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”

THE DETERMINATION OF DAMAGES

The tribunal hearing was to determine damages.  The claimant relied on a number of medical reports and reports from an employment expert. These showed that, by reason of the respondent’s conduct, the claimant was unlikely to work again.  The respondent did not adduce evidence of its own. Further the respondent did not ask that any of the experts attend the hearing to be cross-examined. Rather the respondent’s strategy was to criticise the reports, following cross-examination of the claimant, and assert that the reports could not be relied upon.

THE JUDGMENT

16. The medical reports are as follows:
1. Dr Lockhart (psychiatric report dated 19 June 2015);
2. Dr Aldouri (psychiatric report dated 25 February 2016; plus two
addenda of 4 April 2016 and a further addendum of 18 November
2016);
3. Doctor Bansal (capacity report dated 24 December 2016);
4. Doctor Nayrouz (psychiatric report dated 18 February 2020).

17. The employment expert reports are as follows:
1. Mr Gilbert (28 July 2016)
2. Mr Gilbert (14 February 2020)
18. It is noteworthy that none of these individuals were called as witnesses
to the tribunal and their expert opinions were not subject to cross-examination.
There is no reason, as far as the tribunal is aware, why they could not have been
called. Instead, the respondent has sought to undermine the findings in those
expert reports in its cross-examination of the claimant, which lasted over a day.
As we shall come to, Mr Jackson submits that, as no one else in the room is an
expert in those areas, including the tribunal, we should not go behind the clear
findings made in those expert reports. We will return to this in due course.

 

THE MEDICAL REPORTS

58. As noted, several medical reports were provided in the documentation
for the hearing. There is a huge amount of detail in these reports, both
individually and collectively, and it would be disproportionate to repeat all of them
here. However, we set out below the key elements, albeit in some detail. As we
do so, we also set out some of our factual findings which arise from these
reports. We note at this point that the respondent, although it has not sought to
call any of the medical professionals as witnesses, has sought to challenge the
medical evidence on a number of grounds (including relating to the claimant’s
credibility). We reject those submissions and set out our reasons in a later
section as to why we do so. However, the factual findings that we make in the
section below are made on the basis that we have rejected those submissions.

 

CREDIBILITY AND GOING BEHIND THE FINDINGS IN THE MEDICAL REPORTS

Findings regarding the claimant’s credibility
156. As noted, the respondent chose not to call any of the medical experts or
Mr Gilbert, the employment expert, to give evidence at the tribunal. Rather, the
respondent has nonetheless sought to persuade the tribunal to go behind the
findings in the expert reports and to reject many of those which are adverse to
the respondent’s case. The respondent has done so essentially on two bases.
First, Mr Gorton notes that a lot of the conclusions reached in those expert
reports were based on information given to the compiler of the report by the
claimant in interviews with the claimant and submits that the claimant is not a
credible witness and that, on that basis, we should not rely on the information
given by her to the experts. Secondly, Mr Gorton submits that there are
discrepancies between the evidence given by the claimant to this tribunal and
details in documents before the tribunal, in particular in relation to the claimant’s
previous earnings over the period from 1997 up to her employment with the
respondent which commenced in 2013, and that this should lead us to conclude
that the picture of the claimant’s earning capacity and “job stickability” over that
period is such that we should not accept that it was likely that the claimant would
remain at the respondent until retirement and that, in all likelihood, she would
only have remained at the respondent for a short time anyway (even if she had
not been dismissed by the respondent).
157. A huge proportion of the cross-examination of the claimant and Mr
Gorton’s original submissions was devoted to this, with for example the claimant
being taken through the accounts of JK Media Ltd over the years in considerable
detail, being taken through her GP medical records over the years in
considerable detail, being questioned on all sorts of aspects of her personal life
in order to try and cast doubt on the clear conclusions reached by the doctors as
to the cause of the claimant’s mental health conditions from 2014 onwards and,
without the word “dishonest” actually being used, the repeated implication that
the claimant deliberately gave false information to the doctors and Mr Gilbert
(although, importantly, Mr Gorton never actually put it to the claimant in crossexamination that she had somehow lied to or misled any of the experts).
Furthermore, the supplementary submissions that were made in July 2022
following the production of the HMRC documents also related to these two
strands although, as we shall come to shortly, they made little difference to the
position that had already been put in cross-examination and the respondent’s
original submissions based on the documents in the original bundle.
Case Number: 2200982/2015
– 40 –
158. Submissions made by the respondent in this context, many of which fly
in the face of the conclusions of the expert reports, included “C’s focus has been
to tie all her woes and incapacity to the short employment with R and the
mistreatment by Mr Widmer … That is to seek to blame R for something it is
simply is not responsible for” (4d); “From the outset it is R’s position that C has
shown “considerable strategic thought” in the disclosure of documentation, the
presentation of evidence to experts, but also her evidence to this tribunal” (5);
“There was an acute lucidity in C giving lengthy explanations in her evidence
about matters she was asked about in XX. This was striking. It was
accompanied by complete composure and a grasp of fine detail. That suggests
a (sic) who will be able to function fully when the litigation ends” (6a); “C’s
evidence has a myopic focus solely on R being both the source and responsibility
for all C’s response to the vicissitudes of life after 2014…” (35). The pattern is
continued in the respondent’s supplementary submissions.
159. It is neither necessary nor proportionate to go through every single
aspect and alleged example set out in the respondent’s submissions in
connection with these issues. Rather, we deal with the points raised in logical
groupings.

GOING BEHIND THE EXPERT EVIDENCE GENERALLY

Going behind the expert medical and employment evidence generally

179. Mr Jackson’s primary submission is that the respondent had the
opportunity to call the medical and employment experts and did not do so; that,
realising that it should have done and regretting this, it now impermissibly seeks
to invite us to depart from and go behind the conclusions in the reports; but that,
given that they are reasoned conclusions the basis of which has not been
challenged with the authors of those reports, we should not do so and that that is
the end of the matter.

180. We acknowledge that, under the principles in the case of Griffiths
referred to above, we are permitted to reject an expert report which is
uncontroverted (indeed, we have already done so in relation to the opinion of Dr
Aldouri in her November 2016 addendum report), and it all depends on the
circumstances of the case. The distinction, however, between that addendum
and the remainder of the reports is that the conclusions in the remainder of the
reports are evidence-based and reasoned and the process of reasoning is set
out.
181. In those circumstances, given that the reports were compiled by medical
and employment experts (which neither counsel nor the tribunal are), we do
consider that it would be inappropriate for us to go behind those conclusions, in
these circumstances where the respondent could have called the experts to
challenge those conclusions but chose not to do so.
182. That is, therefore, the end of that matter. However, notwithstanding this
conclusion and for completeness’ sake, we nonetheless consider the
respondent’s submissions in relation to both the medical and employment expert
reports.

Going behind the expert medical evidence

183. The aim of the respondent asking us to reject the clear medical evidence
is to persuade us to accept that the claimant was “in reality… a vulnerable if not
fragile [individual]” and that “life events would likely blow her over” (paragraph 37
of the respondent’s submissions) and that, therefore, firstly other events were
responsible for the condition post 2014 apart from the treatment by the
respondent and secondly that she would most likely have been reduced to this
state by other life events after 2014 even if she had not been so treated by the
respondent. That obviously flies in the face of the clear conclusions of the
medical evidence.
184. With that in mind, the claimant was in cross-examination taken through
vast amounts of information about her personal life and her medical records,
which then formed the basis of many of the submissions which the respondent
made. However, in our view, none of it would make any difference to the
conclusions in the expert medical reports, even if we felt that we were able to
take it into account. We deal with the main examples below.

185. The respondent submitted that the claimant had frequently taken
antidepressant medication at times over a long period going back to at least
2005. That is true. However, as we have already found, the level of the doses
which she took and which she had prescribed were far greater during the period
from 2014 than they were in any of the periods between 2005 and 2012. As a
matter of judicial notice, we note that it is quite possible and not uncommon for
individuals to take antidepressant medication and to be able to function otherwise
quite normally. Furthermore, the medical experts were fully aware of the
claimant’s medical records and the medication which she had been taking during
her history prior to 2014, which is referenced in the medical reports they
produced, so they clearly took that into account in forming the opinions which
they did, acknowledging, as they did, that the claimant had a pre-existing
vulnerability to depression. Nevertheless, they came to the conclusion that the
claimant’s condition post 2014 was as a result of her treatment by the
respondent.
186. The respondent also focused on “other events” in the claimant’s life to
back up this submission and, as noted, the claimant was taken through these in
some considerable detail in cross-examination. They include: her mother’s
illness and death; the dispute about the will with her siblings, both in 2010 and
2012 and at the time the litigation with her brother in 2016; references in the
medical records to a dispute with neighbours; the fact that the claimant went
through a number of sets of solicitors, in relation to this and other litigation
(including Net Solicitors with whom she has had a dispute about fees); and two
relationships which the claimant had in the immediate aftermath of the
respondent’s treatment of her in 2014/2015 and which the respondent’s
submissions characterised as the claimant’s “chaotic personal life”.
187. However, none of this casts any doubt on the correctness of the medical
reports. Again, the medical professionals, who had the claimant’s medical
records in which many of these details are found and who also all interviewed the
claimant themselves, were aware of the majority of these events and the impact
they had on her (and indeed, certain of them such as the claimant’s mother’s
death, did cause the claimant depressive episodes at the time). However, they
nonetheless concluded that it was not these events but the respondent’s
treatment of the claimant which caused her major mental health problems from
2014 onwards.
188. In addition, we reiterate our own observations of how the claimant
reacted to having these things put to her over the lengthy period of her crossexamination. She was able to talk with ease and without any apparent
discomfort about her siblings, whom she said had “always been like that” and
whose behaviour she was used to; about her dealings with the solicitors; about
the dispute with the neighbours; and about the relationships in 2014/2015. There
were only three areas where the claimant became emotional. The first was in
relation to the loss of her daughter which, as we have already found, was a
consequence of the respondent’s treatment anyway. The second was in relation
to her mother, who, as we have already found, was the most significant role
model and influence for her and in relation to whom the claimant repeatedly
expressed the sense of shame which she felt through not being able to hold
herself together in the way she perceived that her mother had; this clearly
caused her pain and she was tearful. However, her emotional reaction was in
this respect as nothing compared to her emotional reaction in cross-examination
when she was forced to recall her dealings with Mr Widmer. As already noted,
that triggered a considerable and visceral response and almost a sense of terror
in her as she was forced to recall it, with her declaring “I can see his face in front
of me”, with the memory so stark and real as if he was almost in the room in front
of her (to be clear, Mr Widmer was not present at any stage of the remedies
hearing). As well as the claimant breaking down in tears in the tribunal (to an
extent that far exceeded any emotional reaction in relation to her daughter and
her mother), her reaction was at one point so extreme that, as noted, the tribunal
had to take a break and Mr Jackson reported that the claimant was
hyperventilating and had symptoms consistent with a panic attack.
189. What we saw was so powerful and, as we have already found, so
genuine, that we have no hesitation in accepting that, as the medical experts
found, the cause of the claimant’s ongoing mental health problems from 2014
was the respondent’s treatment, and in particular the bullying by Mr Widmer.
Prior to that, and in the light of her vulnerable predisposition which the medical
professionals noted and acknowledged, the claimant had had depressive
episodes and difficulties; however, she had coped with them, sometimes with the
assistance of antidepressant medication, and had been able to carry on a
functional life, including looking after her mother, raising her daughter, running
her own business and holding down several demanding jobs. After 2014, she
was not able to function.
190. Finally, there appears to be an attempt by the respondent to run a
further apportionment argument by suggesting that the litigation with the
claimant’s brother, which came to a particular head in hearings in late October –
December 2016, was a supervening event which should lead to some sort of
apportionment in relation to the losses caused by the respondent’s earlier
treatment of the claimant in 2013/2014. In this context, it is worth noting that it
was in December 2016 that Dr Bansal’s report was issued which stated that the
claimant did not have mental capacity for the purposes of the employment
tribunal proceedings and which recommended the appointment of a litigation
friend. However, it is also worth noting that the claimant’s then solicitors, Net
Solicitors, who instructed Dr Bansal, informed him that the claimant’s behaviour
which led them to doubt whether she had mental capacity had been observable
from August 2016 onwards, well in advance of the October/November/December
2016 hearings.
191. There is no basis for the respondent’s submission and its suggestion
that the litigation with the claimant’s brother was a supervening event is entirely
speculative. There is nothing in any of the medical reports to suggest it had any
impact, including in Dr Nayrouz’ report which post-dates the events of
October/November/December 2016. For the reasons set out above, that is the
end of the matter and we do not consider it is appropriate for us to go behind that
report.

 

192. However, if we did consider it was permissible for us to look behind Dr
Nayrouz’ report in principle, there is, for reasons already touched on, no basis to
believe that the litigation with her brother did amount to a separate cause of the
claimant’s mental condition. It was difficult for her to participate in that litigation
and to deal with it but that was the case in relation to most aspects of life after
2014, because of the respondent’s treatment of the claimant. But for the
respondent’s treatment, the claimant would have been able to deal with that
litigation, as she was in relation to litigation and other disputes she was involved
with prior to 2014. There is no evidence whatsoever that the fact that she lost
mental capacity for the purpose of the employment tribunal litigation was linked
to the litigation with her brother; indeed, as noted, the concerns about her
capacity had been noted several months prior to the October – December 2016
hearings in the litigation with her brother. Finally, we refer again to our
observations of the claimant’s evidence before this tribunal; the claimant was
able to talk with ease about all aspects of the litigation with her brother whereas,
by contrast, she was utterly distraught when confronted with the memories of Mr
Widmer.
193. There is, therefore, no basis for this apportionment argument and it is
rejected.

 

Going behind the expert employment evidence

194. Similarly, the respondent is trying to persuade us to go behind the expert
employment reports of Mr Gilbert, specifically with a view to our rejecting his
unequivocal conclusion that “she will find herself permanently excluded from the
labour market”. In doing so, it has focused on the details of the documents in the
bundle and the HMRC documents which were provided after the hearing,
comparing these with the findings in Mr Gilbert’s reports.
195. We have already dealt above with the respondent’s attack on the
claimant’s credibility and the suggestion that she misled Mr Gilbert with the
information she provided to him (which we rejected).
196. We also made the finding that, despite the fact that the claimant got
details wrong, the general gist of what the claimant said to the tribunal in
evidence and the key points were essentially consistent with the contemporary
documents, with other witnesses such as Ms Atkinson, with other evidence given
by the claimant, with the findings of the experts and with the findings of fact that
we have made above. We develop this further in the context of the employment
reports.
197. As noted, much time was spent in cross-examination going through
details of the claimant’s previous employment in the almost 20 year period prior
to her employment with the respondent. Various inconsistencies were identified
(although many of these areas were examples of lack of clarity rather than
inconsistent statements made by the claimant) and were then highlighted in the
respondent’s submissions and supplementary submissions. This was done with
a view to the respondent then submitting that the claimant’s previous
employment pattern indicated that she did not in fact earn at significant levels
and did not hold down jobs for a long period, such that we should go behind Mr
Gilbert’s finding that she intended to remain at the respondent until her retirement
and instead find that it was likely that (had the respondent not treated her in the
way that it did and dismissed her) she would have left the respondent relatively
soon afterwards in any case.
198. As we have already found above, we do not consider that it is
appropriate for us to go behind Mr Gilbert’s findings because the respondent has
chosen not to call him. It could have done so and put these various
inconsistencies to him and asked him if it made any difference to his opinion.
However, it did not do so. It is no defence to suggest that it could not have done
so because, at the time the hearing, the HMRC documents had not yet been
produced, as most of the relevant material was available in the existing
documentation anyway and, as we shall come to, the HMRC documents made
little difference to the matters that were covered in relation to this area in
considerable detail at the tribunal hearing itself.