FACTS
In the case of Yorkshire Housing Ltd v Cuerdon Mrs Cuerdon (Claimant) resigned from her employment with Yorkshire Housing Ltd (Respondent) claiming breach of contract, unfair dismissal and disability discrimination. There was evidence from a medical expert stating that Mrs Cuerdon suffered from a major depressive disorder of moderate to severe variety and panic disorder with agoraphobia.
The Claimant argued that disability discrimination arose out of the Respondent’s failure to make reasonable adjustments in that when the Claimant had been on sick leave her solicitors had written to the Respondent, suggesting that there should be a meeting between the management of the Respondent, the Claimant, her counsellor and her solicitor. The meeting was to seek to agree a timetable and steps to be followed to manage the Claimant's return to work. However the Respondent refused to hold a meeting at which the Claimant's solicitor was present, which was in accordance with its procedures. Also in accordance with its procedures the Respondent stated that it was for the Claimant to advise them when she was mentally and physically fit and well to return to work and that only then would the Respondent consider any advice she had received from her doctor.
The employment tribunal found that the requirements set out by the Respondent amounted to a provision, criterion or practice (PCP) and that in comparison with an employee in similar circumstances but without a mental impairment and who had not suffered the stress reaction that the Claimant had, the Claimant had been placed at a substantial disadvantage.
The tribunal went on to find that in the circumstances a reasonable adjustment would have been to hold the meeting as suggested by the Claimant's solicitors which was very likely to have prevented the adverse effect. The Respondent appealed this decision but that appeal failed.
COMMENT
Employers should be alive to the possibility of disability discrimination if the effect of not allowing a request for a solicitor to accompany an employee at a meeting, whether in these circumstances or others, such as to deal with disciplinary or grievance issues, is to place that employee at a substantial disadvantage. In such circumstances the presence of a trusted legal representative may well mean that the employee is reassured to the extent that a meaningful and useful meeting can take place. However the solicitor who does attend may well become a witness in any subsequent proceedings which would cause practical difficulties going forward.
Employers who find themselves in similar situations should take legal advice before proceeding.