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Lessons to be learned from Hutchinson v Asda Stores Ltd

Mrs Hutchinson (Claimant) successfully sued Asda (Respondent) for direct age discrimination, discrimination arising from disability and constructive unfair dismissal. This recent case highlights what happen if an employer approaches similar scenarios in the wrong way.

The Claimant, aged 73, had been working at the supermarket for 20 years when she began experiencing some early signs of dementia. Her colleagues had noticed that the Claimant was frequently losing her belongings, becoming slower in her role and requiring more assistance.

She was provided with the option to be referred to occupational health or for management to speak with her family but the Claimant declined this offer as she did not want any fuss. The Respondent did make other attempts to support the Claimant including changing her hours to ensure that she did not have to drive in the dark.

Despite the Respondent’s efforts, the Claimant was still ultimately successful in her claim and the Tribunal’s views in coming to this decision highlight important considerations to be taken into account by all employers.

Although the Tribunal had an element of sympathy for the Respondent as the Claimant did not want a referral to occupational health and was reluctant to accept assistance, it found that the Respondent should have done more.

The Tribunal concluded that, because the Respondent ought reasonably to have known that the Claimant was disabled (due to the knowledge of her forgetfulness, confusion etc), it was “at the very least…incumbent” on the Respondent to investigate the Claimant’s symptoms via a referral to occupational health. The Respondent had carried out a risk assessment based largely on the Claimant self-reporting. The Tribunal viewed this as a ‘tick box exercise’ which could not have necessarily picked up on the Claimant’s condition.

An occupational health investigation should have taken place to allow the Respondent to put certain questions to the advisor. Even though the Respondent was never told by the Claimant or her family that she was suffering with dementia, the Tribunal clarified that there was still an obligation on the Respondent to make enquiries where they were aware of her symptoms and difficulties.

It is therefore imperative that an Employer ensures that they are alive to the specific symptoms an employee is exhibiting and how severe the impact is on them and take all necessary steps to have these medically assessed by occupational health, despite the fact that an employee may be reluctant to have such an assessment.

Any risk assessments or investigations that the employer conducts will be assessed on quality and substance and simply paying lip service to the matter will not suffice. While it is not for an employer to ‘force’ an employee to attend occupational health, it is clear from the facts of the case that the Respondent should have done more to encourage a medical investigation than simply asking the Claimant if they were willing to attend occupational health and taking no further action when the Claimant confirmed that she did not want to do so.

In addition to the above finding of discrimination arising from a disability, the Tribunal also found that the Respondent had discriminated against the Claimant due to her age. The Claimant’s manager was found to have asked her if she wanted to retire “on more than one occasion” which deeply upset her. Her manager however said that it was the Claimant who raised the subject of retirement due to her fear of returning to work.

The Tribunal paid particular attention to this point and made a finding of fact that it was the manager who raised the topic of retirement and, despite the fact that this may have been said in “well-meaning”, this was beside the point; the fact that it was said was enough. The Tribunal found that the “repeated mention of retirement” made the Claimant feel that she was too old to continue to work for the Respondent.

The repetition of this was important and the Tribunal also found this amounted to age-related harassment. Whilst the subject of retirement can and should be raised at an appropriate time, it is clear from this case that this should be at the instigation of the employee and not at the repeated insistence of the employer. If an employer believes that an employee is no longer capable of carrying out their role, there are capability procedures available to an employer to explore this and ensure any outcome is fair and reasonable in all the circumstances.