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Asda tribunal

Tribunal: Constructive dismissal – discrimination

Mrs J Hutchinson v Asda Stores Ltd

Overview:

Asda were found to have constructively dismissed Mrs Hutchinson, a dementia sufferer, after she was repeatedly asked if she wanted to retire but was not referred to occupational health. Although done with the best of intentions, this amounted to disability and age-related harassment.

Summary:

Mrs Hutchinson, a 75-year old shop worker from North Wales had been suffering from symptoms of dementia since 2017, initially noticed by her son.

In November 2019 she had been admitted to hospital for an unrelated consition, and on her return to work colleagues noticed a deterioration in her cognitive functioning, with Mrs Hutchinson forgetting things and losing items regularly.

In February 2020, Mrs Hutchinson began travelling to work by bus as she was experiencing difficulties driving. At this time she also told the Ms Green, People Trading Manager, that she was undergoing memory tests organised by her GP.

Ms Green also observed that Mrs Hutchinson had walked to work after being unable to find the bus stop, and when Mrs Hutchinson accepted that her symptoms we worsening Ms Green suggested arranging an occupational health appointment, which Mrs Hutchinson refused.

When Mrs Hutchinson asked Ms Green what she should do, Ms Green discussed how retirement could be an option. Mindful of her wellbeing, she also adjusted Mrs Hutchinson’s hours to avoid the need to travel to work in the dark.

Although in March 2020 Mrs Hutchinson was required to shield due to the Covid-19 pandemic, her line manager, Ms Weston-Laing, supported the claimant by reminding her about things, taking extra time to explain things to Mrs Hutchinson, and assigning colleagues to assist her where possible. She also brought Mrs Hutchinson shopping during her period of shielding.

Ms Weston-Laing kept in touch regularly with Mrs Hutchinson, and during one of the phonecalls asked Mrs Hutchinson whether she would like to retire. Mrs Hutchinson responded “no” and reportedly felt upset and unwanted. Reportedly a similar conversation also took place some weeks later.

Ms Weston-Laing denies this, stating that Mrs Hutchinson actually raised the topic by asking “What would happen if I retire?” however the tribunal found that despite Ms Weston-Laing’s “caring and supportive” approach, that on the balance of probabilities she did suggest retirement on more than one occasion.

On returning to work in July 2020, Mrs Hutchinson’s work performance suffered, as she appeared confused and forgetful. Although colleagues tried to help her (for example “rummaging” in her bag for her when she couldn’t find her bus pass), this left Mrs Hutchinson feeling upset and constituted disability-related harassment.

The judgement said of this “There may have been a way of assisting the claimant which preserved her dignity, asking her what she wanted them to do. The conduct was unwanted by the claimant and it related to her condition as it was brought about by her memory impairment. It had the effect of violating her dignity.”

A meeting was held between Mrs Hutchinson, Ms Weston-Laing and another colleague to discuss anything that the store could do to support her. However Mrs Hutchinson became upset and aggressive, saying that she didn’t need any help and if she did she would ask for it. Ms Weston-Laing again suggested she speak to occupational health, but Mrs Hutchinson asserted “I Can’t do my job, I will leave.” At this point she left the meeting, was signed off sick by her GP, and did not return to work.

The judgement wrote the following about the situation: We have some sympathy for the position that the respondent found itself in as the claimant did not want any fuss or a referral to occupational health. She was reluctant to accept assistance. However we find that the respondent ought reasonably to have known that the claimant was disabled.

“Given the background of the claimant having been asked to retire, we find that when the respondent raised concerns with her this was unwanted and created a humiliating environment for her. It was related to her disability as it was about the symptoms she exhibited as a result of her mental impairment.

“Had the respondent referred the claimant to occupational health prior to her return to work there would not have been a need for her line managers to talk to her directly about her symptoms, even though this was out of genuine concern.

“[The respondent] ought to have referred the claimant to occupational health prior to her return.

“The claimant was, we find, constructively dismissed on the basis that the conduct (which we found amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability) breached the implied term of trust and confidence.

“It is clear that these situations are very delicate. Nonetheless, employers and managers need to be aware that even seemingly well-meaning comments and actions can be held to amount to discrimination (including harassment) on the grounds of disability and/or age. Asking an older employee if they would like to retire is inevitably risky, as it can make them feel unwanted and upset, and is unlikely to be a question asked of younger employees. It is therefore quite likely that this will amount to age-related harassment.

“A better way is to ask all employees (perhaps as part of the appraisal process) what their future work plans and aspirations are. Furthermore, a retirement policy can be very helpful as it can set out a framework for employees to feel comfortable in raising and discussing their retirement plans.”

Read the full decision here.