Disabled Employee Wins over £50k in Discrimination & Dismissal Claim

Former Marks & Spencer employee, Rita Jandu, has been awarded £53,855 for unlawful discrimination and unfair dismissal. Ms Jandu had worked for M&S for more than 20 years initially as an Assistant Buyer and worked her way up to the position of Clothing and Home Planner. In 2019 she was described by one of her managers as being “one of the higher performers on the team”.

Ms Jandu had a longstanding diagnosis of Dyslexia, and her employers were aware of this. Due to her Dyslexia, she struggled with notetaking, writing emails, writing as people were speaking and preferred to communicate in emails using short-hand and bullet points. She also had trouble concentrating.

M&S took the decision in July 2020 that redundancies were needed due to the impact of Covid-19. During the redundancy process, Ms Jandu felt she was “singled out” when she was selected for redundancy for appearing to rush her work and repeated inaccuracies in her emails and other written work. However, she insisted that this was down to her disability, Dyslexia.

During the redundancy process staff were rated on several criteria to determine who would be let go. The Tribunal heard that if Ms Jandu had scored one more point in the process, she would have been safe. In August 2020, she was told her position was at risk of redundancy, and she became “too upset” to apply for the other vacancies suggested by M&S. Ms Jandu said she felt “singled out” and that it was “unfair and unjust” because she suspected there was an “unconscious bias” related to her Dyslexia.

Ms Jandu was subsequently made redundant in October 2020. She appealed this decision raising concerns around her Dyslexia, but she was told that none of the assessments were linked to this condition. After the appeal failed, in January 2021 she brought various claims to the Employment Tribunal, including disability discrimination, failure to make reasonable adjustments, unfair dismissal and victimisation.

All of her claims except victimisation succeeded, and she was awarded £53,855 in compensation.

The Tribunal was satisfied that Ms Jandu met the statutory definition of a disabled person, in that her Dyslexia had more than minor or trivial effect on her ability to carry out day-to-day activities. Therefore, the Tribunal ruled that M&S managers ignored the impact her Dyslexia had on her work including her ability to concentrate and communicate.

Employment Judge Holly Stout stated that Ms Jandu’s manager allowed her perception that Ms Jandu was prone to “rushing” and “inaccuracies” to count against Ms Jandu, instead of considering whether the “rushing” and “inaccuracies” related to Ms Jandu’s Dyslexia.

Further, Judge Stout stated, “we therefore consider that [M&S] had come under a duty to make reasonable adjustments. The adjustment proposed by [Ms Jandu] is that [M&S] should have discounted any disability-related effects when assessing [her] against the redundancy selection criteria.”

The Tribunal agreed that this would have been an appropriate reasonable adjustment, and would have cost M&S nothing. Therefore, M&S were found to have failed in complying with their duty to make reasonable adjustments for Ms Jandu’s disability.

The Tribunal criticised M&S’s redundancy selection criteria and warned against the use of a subjective scoring criteria. M&S scored employees on their ‘Leadership Skills’, ‘Technical Skills’ and ‘Behaviours’ in an effort to keep things simple, but had not implemented clear narratives as to what was and was not covered by each criterion. In this case, this led to Ms Jandu being marked down for her “inaccuracies” and for “rushing” across all three criteria, which the Tribunal said was unfair.

Further, the Tribunal highlighted that M&S should have obtained advice from Occupational Health at the point of finding out about the employee’s Dyslexia to ensure that appropriate adjustments could be made for her at work. In addition, M&S also should have made reasonable adjustments to the redundancy process to ensure that the scoring did not negatively impact any employees suffering from Dyslexia.

This case has highlighted the importance for employers to ensure they conduct a fair redundancy process, as a poorly managed process will inevitably increase the risk of Employment Tribunal claims which will be expensive and time consuming.

A number of key considerations employers should follow when considering redundancies are:

• Ensure employees receive adequate warning of possible redundancies;
• There must be meaningful and genuine consultations with the employees at risk;
• During the consultation process, consideration should be given as to how the redundancies
  might be avoided or their effects mitigated;
• Any representations made by the employees should be considered carefully and replied to;
• Employers should enter a redundancy process with an open mind and ensure that any
  alternatives to redundancies are considered and offered;
• The selection criteria chosen should be fair and free from any taint of discrimination which
  could indirectly discriminate on the basis of disability, age, gender etc.; and
• All employees should be given the right to appeal against any decision to dismiss them by
  way of redundancy.

If you have any questions about navigating redundancy processes, or any other query related to Employment Law, please feel free to get in touch with our Employment team.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.