Case Law Update: Dementia & Disability Discrimination

An Employment Tribunal has found that an older employee with dementia was:

1. Constructively dismissed,
2. Discriminated against, and
3. Humiliated because of her condition.

Part of this was being repeatedly asked if she wanted to retire. Also, she wasn’t offered an occupational health referral prior to her return to work after shielding.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Employment law related to the case

Section 95(1) Employment Rights Act 1996:

An employee is dismissed by their employer if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of his employer’s conduct.

Western Excavating v. Sharp [1978] set out the principles of a constructive dismissal:

• there must be a fundamental breach of contract or a breach going to the root of the contract;
• that the Claimant must resign in response to the breach
• that he or she must not delay or it will be said that he or she will have been taken to affirm the contract.

Malik v BCCI SA [1998]

It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

Equality Act 2010

Section 13

• a person (A) discriminates against another (B) if, because of a protected characteristic A treats B less favourably than A treats or would treat others.

Section 5

(a) in relation to the protected characteristic of age a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group.

Section 15

(1) A person (A) discriminates against a disabled person (B) if

1. a) A treats B unfavourably because of something arising in consequence of B’s disability, and b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) subsection (1) does not apply if A shows that A did not know and could not reasonably be expected to know that B had the disability.

Section 20

the duty to make reasonable adjustments arises when a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. The duty is to take such steps as is reasonable to have to take to avoid the disadvantage.

Section 21

a failure to comply with the duty amounts to a failure to make reasonable to make reasonable adjustments.

Schedule 8 paragraph 20 of the Act an employer is not under a duty to make reasonable adjustments if it does not know and could not reasonably be expected to know that the disabled person has a disability and is likely to be placed at a substantial disadvantage.

Section 26

a person harasses another if a person (A) engages in conduct relevant to a protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Hutchinson v ASDA

Facts of the case

The claimant had worked in an Asda store for 20 years. She first began displaying signs of dementia in 2017. By 2019 her deterioration was noticed by her colleagues. By 2020, the claimant had stopped driving to work and instead started getting the bus. At this point, her doctor had arranged a memory test for her. The claimant did not disclose that she was suffering from dementia to the respondent.

On one occasion, she walked to work after failing to find the bus stop. It was suggested by a store manager that she arrange an occupational health appointment, or contact the claimant’s daughter. The claimant refused both of these actions. The same store manager also discussed retirement with the claimant at this time.

As a result of government advice that the over 70s should shield, the claimant began 12 weeks of isolation in March 2020. Asda were supportive of her during this time. However, another manager began asking her if she wanted to retire a number of times. As a result, the claimant began to feel unwanted by Asda.

On her return from shielding, issues as a result of her dementia continued. Concerns over her performance were noted. This ultimately led to a meeting between the claimant and her manager. She was asked if there was any support that could be given, or if she wanted to speak to occupational health. As a result of this conversation, the claimant left the store and was signed off sick. She never returned to work.

What the employment tribunal found

The tribunal was critical of the approach taken by Asda in approaching this matter. They accepted the situation was made more difficult by the claimant being reluctant to accept assistance. However, it should have been obvious she was disabled and therefore in need of a more sensitive approach. The previous conversations around retirement influenced future interactions. This meant when occupational health was suggested on the return to work, it created an unwanted and humiliating environment for the claimant. This was directly related to her disability as the concerns involved the symptoms of her condition.

It was held that it was incumbent upon Asda to have investigated the symptoms via occupational health prior to her return to work. Instead, a risk assessment was carried out, which was largely self-reported. This was found to be a ‘box-ticking exercise’. Had they done the report, it would not have been necessary for her manager to approach her directly about her symptoms.

It was found the comments were well meaning, and that the claimant’s manager was helpful and supportive. However, the situation as a whole created a hostile environment that led to:

• Discrimination,
• Disability-related harassment and
• A breach of the implied term of trust and confidence.

Note for employers

This judgement is an important reminder to approach situations such as this delicately. It will almost always be risky to ask about an individual’s plans to retire. It can lead to them feeling pushed out of the business. Instead, the assumption should be that the employee will continue until they are ready to go. Therefore, older employees should be asked what their future work plans and aspirations are.  Provide guidance on what your organisation can do to help them develop.

If you haven’t already, make sure you write and review your retirement policy. If employees can trigger it themselves, it’ll help them feel comfortable in raising the issue within a framework. This can manage their expectations of the conversation. It will also make it explicitly clear that there is no pressure for employees to make a decision regarding their working life.

TL;DR

An Asda worker developed dementia. As a result, concerns were raised with the worker’s manager, and she was asked about retirement. She shielded during lockdown as a result of the coronavirus pandemic. When she returned to work, more concerns were raised and a risk assessment was conducted. Her manager suggested she be referred to occupational health. Following this she was signed off sick and never returned to work.

The ET found that she was discriminated against. Occupational health should’ve been involved prior to her return to work. Previous conversations about retirement contributed towards a hostile work environment. This was despite her manager being helpful and supportive.

Expert employment tribunal insights

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