An employer who enquired on several occasions whether a 73-year-old employee with dementia wanted to retire was found to have subjected her to age and disability-related discrimination and harassment. It was also found that the employee had also been constructively unfairly dismissed.
Whilst the employer didn’t have actual knowledge of the employee’s disability (the dementia) the tribunal found that the employer ought reasonably to have known that the employee was disabled. The employer was aware that the employee was forgetting things, getting confused and needing greater assistance to carry out her role. This put them on notice that she had symptoms of a ‘mental impairment’ which should have been investigated via an occupational health report.
The case of Hutchinson v Asda Stores Ltd highlights the importance of treating all employees in the workforce fairly and appropriately and demonstrates the risks of employers raising the question of retirement with employees.
The Facts of the Case
The employee was employed as a shop floor assistant in the employer’s clothing department. Unbeknown to the employer she presented to the GP with early symptoms of dementia and was diagnosed with mild cognitive impairment. Managers and colleagues had noticed some symptoms, which after her return to work from unrelated sickness absence, worsened. Steps were taken to support her.
The employee acknowledged she was getting worse, and a manager suggested that she arrange an occupational health appointment or contact her daughter, both of which were refused. It was then that it was recorded by the manager that the employee asked her what she should do and it was at that point that retirement was discussed as an option.
On 19th March 2020 the employee, as a person over 70, was obliged to shield due to the pandemic, again the employer was supportive. However, it was alleged that during telephone conversations during this period it was again suggested she retire which she found upsetting.
The employee returned to work in July 2020. During a return to work interview the employee revealed that she was taking anti-anxiety medication and it was agreed that she would have a consultation with occupational health. During the day there were concerns about the employee, including that she needed to be reminded about social distancing, had trouble with her locker and there was confusion about how she was getting home. Before leaving the store, the employee had difficulty finding her keys and bus pass, so a manager rummaged in her bag to find them for her.
Management decided to hold a meeting with the employee out of concern for her and to see if there was anything the store could do to support her at work. There was some discussion about the above events. The employee became upset and aggressive, saying she did not need help and that if she did need help, she would ask for it. The employee was asked if she would speak to occupational health and she said, “I can’t do my job, I will leave” and left the store. She was upset with concerns raised about her memory and how it was affecting her work. She also felt her employer did not want her there anymore.
The employee was signed off work sick, her son raised a grievance on her behalf alleging ongoing bullying, harassment, and discrimination on the grounds of age and disability as well as grounds for constructive unfair dismissal. The grievance was not upheld, it was suggested that the employee meet with management again after the occupational health referral so that her return to work could be properly managed. The employee resigned and complained to an employment tribunal that she had been constructively unfairly dismissal, subjected to age and disability-related harassment, direct age discrimination and discrimination arising from disability.
The employee won her claims. Whilst the judge was not without some sympathy for the employer, it was found amongst other things that:
- On the balance of probabilities retirement was suggested to the employee on more than one occasion. This may have been said in a well-meaning way but, nevertheless, it was found that it was said. It is something that would not have been raised with an employee who was not of retirement age in similar circumstances. It made the employee feel as though she was being pushed out of the business or that she was too old to be there. The repeated mention of retirement to the employee as a possible option was direct age discrimination and age-related harassment as it was unwanted conduct which violated the employee’s dignity.
- A manager rummaging in the employee’s bag to help find her keys and bus pass was an act of disability related harassment and discrimination arising from disability. Whilst it was done with the best intentions and to genuinely assist the employee (and despite her having been grateful at the time) it left her feeling upset. The conduct was unwanted by the employee, and it related to her condition as it was brought about by her memory impairment. It had the effect of violating her dignity. It was reasonable for the conduct to have had that effect because it was someone doing something for her without her consent. The judge felt there may have been a way of assisting the employee which preserved her dignity, such as by asking her what she wanted them to do.
- Given the background of the employee having been asked to retire, raising concerns about her symptoms to her directly would reasonably have been humiliating to her in circumstances when the employer ought reasonably to have referred her to occupational health prior to her return to work. There would not then have been a need for her line managers to talk to her directly about her symptoms, even though this was out of genuine concern. There may have been a recommendation in any occupational health report as to how to communicate with the employee to avoid making her feel agitated.
- The employee was constructively dismissed on the basis that the employer’s conduct breached the implied term of trust and confidence.
As this case highlights, it’s important to act sensitively and appropriately when managing ill-health, it should be borne in mind that it is possible to fall foul of the law even if actions are well meaning. When it comes to retirement, this case is a reminder that initiating conversations about retirement will usually be risky for employers.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd for advice on the facts of your case.