A former Asda employee suffering with dementia has won her employment tribunal claim after it was found that management had repeatedly asked if she wanted to retire.
The case of Hutchinson v Asda Stores highlights how, despite numerous examples of care and compassion towards their employee, store managers should have referred her to occupational health for a formal investigation of her symptoms of forgetfulness and confusion.
Mrs Hutchinson, 75, who had worked for the supermarket in north Wales for 20 years, won her claim for constructive unfair dismissal on the basis of age and disability-related harassment, direct age discrimination, and discrimination arising from disability.
The claimant worked part-time in the George clothing department and enjoyed her role and was well liked by colleagues. Around 2017 her son noticed his mother showing symptoms of dementia.
In November 2019 she was admitted to hospital for an unrelated condition and when she returned to work her colleagues noticed a deterioration, with the claimant losing items and forgetting things.
In February 2020, experiencing difficulties driving, Hutchinson began to travel by bus to work. It was at this time that claimant told Ms Green, people trading manager, that her doctor had arranged a memory test for her.
Having walked to work after being unable to find the bus stop, Hutchinson accepted that she was getting worse and Green suggested that she arrange an occupational health appointment or to contact her daughter. The claimant refused both.
It was then recorded by Green that the claimant asked her what she should do and it was at that point that retirement was discussed as an option.
With Hutchinson’s wellbeing in mind, Hutchinson’s hours were changed so she did not have to drive to work in the dark.
On 19 March 2020, as someone over 70, she was obliged to shield due to the unfolding Covid-19 pandemic. Prior to this her manager, Ms Weston-Laing, supported the claimant in work, spending extra time reminding her about things and explaining things to her. She also assigned colleagues to assist her.
During the 12 weeks’ isolation, her son reported that Asda were supportive of his mother and tweeted that her manager, Weston-Laing, brought her shopping.
Hutchinson’s daughter Mrs Clitherow gave evidence that her mother had said that during a telephone conversation Weston-Laing had asked if she wanted to retire. Hutchinson had said “no” in response and was upset as she felt unwanted at Asda.
Clitherow gave evidence that a similar suggestion she should retire happened a few weeks later and that her mother, who did not give evidence directly to the tribunal, had told Weston-Laing that she should not be asking her that.
Weston-Laing denied asking Hutchinson if she wanted to retire as alleged and saying it was in fact the claimant who had initiated the subject as she was scared of returning to work. She said the claimant had asked: “What would happen if I retire?”
The tribunal found Weston-Laing “caring and supportive” but that, on the balance of probabilities, she did suggest retirement on more than one occasion.
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The claimant returned to work on 9 July 2020, and throughout the course of the day Weston-Laing was concerned about her performance and needed reminding about social distancing.
When she left that day, there was also confusion around whether Hutchinson’s daughter would pick her up or if she was catching the bus. Prior to leaving, Hutchinson could not find her keys and bus pass and another manager “rummaged” in her bag to find them.
The tribunal found that, while done with the best intentions and despite the claimant having initially been grateful, this left the claimant feeling upset and constituted disability-related harassment.
“There may have been a way of assisting the claimant which preserved her dignity, asking her what she wanted them to do,” said the judgment. “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.”
Hutchinson arrived at work the following day an hour early, as she had the previous day due to revised bus times, but this was seen as another indication of her confusion.
Weston-Laing and another colleague Ms Quinn decided to hold a meeting to see if there was anything the store could do to support her. There was some discussion about the claimant losing her keys and the bus pass and the concerns about her getting home.
Hutchinson became upset and aggressive saying she did not need help and that if she did she would ask for it. Weston-Laing asked the claimant if she would speak to occupational health and she said “I can’t do my job, I will leave”. She then walked out and did not return to work having been signed off sick.
The judgment read: “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.”
It continued: “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 employment judge said it was incumbent on Asda, prior to her return to work from lockdown, to investigate her symptoms via a referral to occupational health. The risk assessment that was carried out was based to a large degree of the claimant self-reporting and it concerned risks relating to Covid-19. “It was largely a tick-box exercise that would not necessarily have picked up on the claimant’s condition,” said the judgment.
The judgment concluded: “[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.”
Keely Rushmore, employment law partner at Keystone Law, said the case is a reminder to employers of the need to exercise caution in relation to older employees exhibiting symptoms of ill-health.
“Mrs Hutchinson had not told Asda that she was suffering from dementia, but the tribunal (despite acknowledging some sympathy) held that the company had constructive knowledge of her disability given it was aware of her symptoms of forgetfulness, inability to concentrate and confusion,” said Rushmore. “In raising concerns about how her symptoms were affecting her ability to do her job, against a backdrop of having raised retirement as an option on more than one occasion, this amounted to disability and age discrimination.
“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.”
An Asda spokesperson said: “Asda is an inclusive employer that is proud to employ colleagues of all ages. We apologise to Mrs Hutchinson for her experiences.”
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