Opinion

Sick employees can get new rights under new interpretation of the law

Under English law, employees who want to have a meeting with their employer, particularly when discipline or a grievance is involved, have the right to be accompanied by a colleague or trade union representative.

But what should an employer do if the employee wants someone else such as a lawyer? The recent case of Yorkshire Housing Ltd vs. Cuerden shows that the law can be interpreted in many different ways.

In this instance, Mrs Cuerden was on sick leave suffering from a depressive disorder and was classified as disabled for the purposes of the Disability Discrimination Act.

Cuerden's solicitor wrote, whist Cuerden was on what was to be seven months of sick leave, to Yorkshire Housing suggesting a return to work meeting to plan out the steps required for sick leave to end.

Cuerden wanted a counsellor and a solicitor present at the meeting. Yorkshire Housing refused citing that the law allows for only a colleague or a union representative to be present.

Cuerden brought a number of claims, after resigning, including one stating that her employer failed to make a reasonable adjustment - as required under the DDA - in refusing her lawyer access to the meeting.

At the tribunal, Cuerden won on the basis that she had been placed at a significant disadvantage compared to an employee who didn't have a mental impairment.

The importance of this case cannot be understated as employees who are off sick may try to rely upon it. But employers need not roll over when the employee demands a lawyer to be present.

However, they must consider the request in the light of an employee being significantly disadvantaged without a lawyer. Also, consider if someone else, other than a lawyer - friend or family - should be present.

This was first published in February 2011

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