Lessons to be learnt – two important disability discrimination decisions

11 Mar 2011

1. Disabled employee entitled to legal representation at an internal meeting

In the case of Yorkshire Housing Ltd v Cuerden UKEAT/0397/09/SM, the Employment Appeal Tribunal (“EAT”) ruled that a disabled employee should have been allowed to be accompanied by her lawyer at an internal meeting.

Ms Cuerden had been absent on long term sick leave with depression. She was invited to attend a “return to work” meeting to discuss her proposed phased return. Ms Cuerden requested that her lawyer accompany her at the meeting but Yorkshire Housing refused the request, relying on their policy that employees could only be accompanied by colleagues or trade union representatives.

Ms Cuerden claimed that the failure to allow her to be accompanied by her lawyer was discriminatory on the grounds that it was a reasonable adjustment that should have been made. The Tribunal agreed that the refusal to allow the employee legal representation put her at a substantial disadvantage compared to a non-disabled employee who did not have mental health problems. It was decided that allowing a legal representative to attend an internal meeting was a reasonable adjustment that could and should have been made.

Whilst it would be unusual to allow a legal representative into an internal meeting, this decision makes it clear that a blanket policy is not appropriate. Employers need to be flexible when considering requests and should only refuse them if there are very good grounds to do so.

2. Employers could be forced to re-employ disabled workers who resign

Employers may need to think twice when accepting resignations from disabled employees. In the case of Hinsley v Chief Constable of West Mercia Constabulary UKEAT/0200/10, a police woman resigned from her position, informing her employer that she was no longer able to cope with the demanding role. Her employer accepted the resignation and did not expect to hear from her again.

After handing in her resignation, the police woman visited her GP and was diagnosed with severe depression. Her GP told her that her condition could be treated and that she would receive help. The employee regretted her rash decision to resign and wrote to her employer asking them to re-employ her. West Mercia Constabulary took a few months to consider the request but refused to retract the resignation.

The EAT held that the employer was under a duty not to discriminate against employees, even after they have left and that the refusal to re-instate was discriminatory. The employer should have accepted that the resignation was made when the employee was not in a fit state of mind and it would have been a reasonable adjustment to accept the employee back into her role.

Generally, employers can sleep soundly once an employee has resigned (unless there is the possibility of a constructive dismissal claim), it would be very unusual to be expected to re-employ, post-resignation. However, it is important that employers are alert to the fact that if an employee with mental health problems resigns, refusing to take them back could amount to discrimination.