An Employment Tribunal has found that an older employee with dementia was constructively dismissed, discriminated against, and humiliated because of her condition, when she was repeatedly asked if she wanted to retire and not offered an occupational health referral prior to her return to work after shielding.
Facts
The claimant had worked in an Asda store for 20 years. She first began displaying signs of dementia in 2017, and by 2019 her deterioration was noticed by her colleagues. By 2020, the claimant had stopped driving to work and instead started getting the bus, and her doctor had arranged a memory test for her. The claimant did not disclose that she was suffering from dementia. A store manager suggested that she arrange an occupational health appointment, or contact the claimant’s daughter, but 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, and on her return from shielding, issues as a result of her dementia continued, and concerns over her performance were noted. This ultimately resulted in a meeting between the claimant and her manager, where 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, never to return to work.
Employment tribunal
The tribunal was critical of the approach taken by Asda in this matter. Whilst it was accepted the situation was made more difficult by the claimant being reluctant to accept assistance, it should have been obvious she was disabled and therefore in need of a more sensitive approach. Asda should have investigated the symptoms via occupational health prior to her return to work, rather than the risk assessment that was carried out, which was found to be a ‘box-ticking exercise’.
The situation created an inhospitable environment that led to discrimination, disability-related harassment and was a breach of the implied term of trust and confidence.
Guidance for Employers
This case is an important reminder for employers that they must approach situations such as this sensitively. There is always risk associated in asking about an individual’s plans to retire, as it can lead to them feeling pushed out of the business. Instead, they should be asked, as younger employees are, what their future work plans and aspirations are, and what the business can do to help them develop.