An employment tribunal case involving Marks and Spencer settled late last year underlined how important it is for employers to ensure their redundancy processes do not discriminate against employees with disabilities. Hina Belitz evaluates the lessons to be drawn from it.
Last year former health secretary Matt Hancock had the Conservative whip removed for his controversial decision to enter the I’m a Celebrity jungle. He maintains that he took part in the programme to raise awareness of his campaign for more dyslexia support and understanding in the UK, particularly in schools.
Whether or not one agrees with Hancock’s particular method of drawing attention to this cause, it is true that dyslexia, dyscalculia and other learning-based difficulties affect a significant proportion of the UK population. Such people often require simple but tailored adjustments in the workplace to enable them to work. The British Dyslexia Association puts the figure of dyslexia sufferers in the UK at 10%.
While the decision to move to redundancy may be managerial, it cannot be taken without having sought a clear understanding of the medical position”
In UK Equality Law an employer is required to consider making reasonable adjustments for individuals who fit the definition of disabled under the law, the objective being to supply equipment or apply changes to premises or working practices to avoid such people from suffering a substantial disadvantage. A recent employment tribunal case (finalised in December 2022), Jandu v Marks and Spencer, has drawn attention to dyslexia as a disability for the purposes of this part of the Equality Act.
It has hammered home the necessity to consider and, where reasonable, apply adjustments to processes throughout the employment lifecycle, including in potential end-of-employment situations such as redundancy consultations. This case has also made headlines because of the high profile and wealthy nature of the respondent employer, Marks and Spencer.
The case
Ms Jandu was diagnosed with dyslexia while a mature university student in 2009. She was studying interior design but struggling with some aspects of the work. As a result, she received an assessment from a clinical psychologist, who compiled a Study Aid and Strategies Report.
Given dyslexia’s medically proven lifelong nature, the report was used by the court as an indicator of Jandu’s current learning difficulties which included “weaknesses in working memory, weaknesses in processing visual information at speed, issues with tracking lines of text when reading, some issues with spelling” and more.
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Jandu was employed by Marks and Spencer as a layout planner between 2013 and 2020.
Given the issues Jandu faced with work, she was clear with managers from the start about the support she would need. Most managers were happy to support her by reading through important emails that would be sent to wider teams, colour-coding emails sent to help her identify key points/passages, and similar.
Prior to Jandu’s consultation for redundancy, she had not asked for further support to manage her disability, since she felt that she, with managerial encouragement, had it in hand. No formal issues with her work style and quality were raised by management.
In July 2020 Jandu was placed into a redundancy consultation, in which she was given a low score in a matrix for leadership and communication. In meetings following this scoring, explanations provided included that Jandu’s emails “appeared rushed” and not “thought through”. In addition, it was discussed that Jandu was extremely compliant as an employee, normally taking notes in meetings to action on her own time rather than engaging extensively in discussion. This, along with other traits, were found to be linked to Jandu’s dyslexia.
Raising dyslexia as a potential contributory factor, Jandu was rebuffed and told that the meetings were “not about her dyslexia”. On appeal of her eventual dismissal for redundancy, Marks and Spencer’s managerial team confirmed that Jandu’s dyslexia had in their view “nothing to do” with the eventual outcome of the redundancy consultation, which was dismissal.
Tribunal findings
The employment tribunal fundamentally disagreed with Marks and Spencer’s handling of Jandu’s redundancy consultation and awarded her £50,000 following her successful unfair dismissal and discrimination claims. The tribunal noted that:
- Jandu’s dyslexia was clearly a disability, having more than a minor effect on her day-to-day activities
- Her managers clearly knew about her disability
- Not making any change to the redundancy consultation process, such as scoring, to consider Jandu’s disability was a failure to make reasonable adjustments
- Marks and Spencer’s arguments regarding a “legitimate aim” defence to discrimination, namely that they were applying consistent metrics to the entire redundancy pool to retain the best talent, were rejected
Courts will consider the size of an employer in regards to potential reasonable adjustments
- Making the relevant adjustments regarding Jandu’s disability in the redundancy scoring would have cost nothing to the employer and would potentially have resolved the issue
- The selection criteria on which employees were scored in the redundancy matrix was extremely unclear; managers were able to subjectively reference the same disability-related issues (inaccuracy, tone, compliant nature) to every matrix, despite them not being truly relevant – for example to leadership; one of the scored qualities.
Reflections
Although this is a non-binding case, it is interesting to consider workplace issues arising from neurodivergent disabilities and what consequently constitutes a reasonable adjustment.
Dyslexia is a difficult but potentially all-encompassing disability; in Jandu’s case her dyslexia affected every part of her working day, including her organisation and planning, her accuracy and her tone of email. It can take many forms and have specific effects on individuals. Jandu’s dyslexia led to a highly compliant nature and issues with written tone, whereas others may struggle more with issues such as spelling. Employers should be careful not to treat all employees who raise issues of dyslexia identically
It is evident that Jandu’s employer did not seek further support and understanding concerning her disability from professionals before reaching a judgment. While the decision to move to redundancy may be managerial, it cannot be taken without having sought a clear understanding of the medical position. Jandu’s appeal manager’s assertion that Jandu’s dyslexia had not been a factor in redundancy did not absolve Marks and Spencer’s obligation to understand the claimant’s issues further and make the relevant adjustments given they were reasonable.
Courts will consider the size of an employer in regards to potential reasonable adjustments. Marks and Spencer were expected to have been able to take the relevant steps and seek relevant medical information in this case.
Redundancy procedures should be objective as far as possible. The subjective headings of “behaviour” and “leadership”, among others, in the redundancy scoring here were difficult for managers to assess and score objectively.
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It is important for employers to bear in mind an employee’s circumstances and to ensure that they are making reasonable adjustments where necessary, so as to avoid putting those who do fit the definition of disabled under the law at a disadvantage.
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