Originally published 23 December 2010
Keywords: breach of contract, unfair dismissal, disability discrimination
It is not uncommon for an employer to receive a request from a disgruntled employee that they be allowed to bring their legal representative to meetings at work, particularly in relation to disciplinary and grievance issues. Under English law, however, the strict legal right to be accompanied at such meetings only extends to a colleague or a trade union representative. This principle has been challenged in recent cases on human rights grounds, specifically the right to a fair trial (see our February Update). More recently, the same issue has come up for consideration in the context of the Disability Discrimination Act ("DDA").
The Facts
Mrs Cuerden suffered from a depressive disorder and was disabled for the purposes of the DDA. Whilst on sick leave, Mrs Cuerden's solicitor wrote to her employer, Yorkshire Housing, to suggest that a return to work meeting be arranged with a view to agreeing a timetable and a series of steps to be followed to manage Mrs Cuerden's return to work. The suggestion was that Mrs Cuerden should be accompanied by her counsellor and her solicitor at this meeting. Yorkshire Housing would not agree to attend any meeting at which Mrs Cuerden was accompanied by her lawyer, citing the fact that their procedures provided only for employees to be accompanied by a work colleague or trade union representative.
Subsequently, Mrs Cuerden resigned and brought claims for breach of contract, unfair dismissal and disability discrimination. She claimed that her employer had failed to make a reasonable adjustment under the DDA in refusing to allow her lawyer to attend the meeting.
The Decision
The Tribunal found in favour of Mrs Cuerden. They decided that Mrs Cuerden was at a substantial disadvantage when compared with an employee who had been absent for the same period of time (seven months) but who did not have a mental impairment. In these circumstances, it would have been a reasonable adjustment for the Company to hold the meeting as suggested by Mrs Cuerden's solicitors as it would very likely have alleviated this disadvantage. Instead, the Company failed to seek medical advice or even consult with Mrs Cuerden's representatives about her concerns.
Impact
This decision is an important one for employers to be aware of. Employees who are sick, and potentially disabled, may try to rely on it. Employee lawyers may also try to extend it into disciplinary or grievance procedures if, say, the employee is signed off sick with stress.
We do not believe, however, that this case gives a right to all disabled employees to be accompanied by their lawyer at such meetings and the facts of each situation will need to be considered. In this case, the employer fell down by simply refusing the request without seeking any medical advice or making any suggestions as to alternative arrangements that may have addressed Mrs Cuerden's concerns about the meeting. For example, it may have been enough for Mrs Cuerden to have been accompanied by just her counsellor.
The key questions to be considered are whether the employee is at a substantial disadvantage and whether the adjustment will avoid that disadvantage. This may be harder for an employee to demonstrate where meetings are part of a disciplinary or grievance process as normally the purpose of these meetings is not to facilitate a return to work. In a previous case, an employee with learning difficulties (who was disabled under the DDA) wanted to be accompanied to a disciplinary hearing by a friend in order to help him understand the case against him. The employer's policy was that employees could only be accompanied by a work colleague and so they refused the request. The court rejected the employee's claim for discrimination on the basis that he had not been placed at a substantial disadvantage. Although his learning difficulties affected his written communication, they did not substantially affect his ability to understand or express himself in a meeting.
Recommendations
If an employer is faced with a request by a disabled (or potentially disabled) employee to be accompanied by their lawyer at a meeting, they should to consider the request and not dismiss it out of hand. In particular, (i) what disadvantage will the employee suffer at the meeting due to their disability, and (ii) would allowing their lawyer to attend the meeting alleviate that disadvantage?
It is advisable to discuss the concerns with the employee and their legal adviser. Ask them to explain the disadvantage they believe will be suffered and how having the lawyer in attendance will alleviate it. Consider other ways of addressing the employee's concerns, such as allowing them to bring non-colleague companion (e.g. a friend or family member). Or having access to their legal adviser by telephone so that they are able to contact them during the meeting if necessary. When discussing alternatives with the employee, you may want to make the point that if the employee is accompanied by a lawyer, the Company's lawyer will need to be present too. Formalising the process in this way may encourage the employee to consider other options.
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