UK: In the Company of...Lawyers?

Last Updated: 23 December 2010
Article by Christopher Fisher and Claire Holland

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.


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.


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.

Learn more about our Employment practice.

Visit us at

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2010. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.