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Dyslexia discrimination – where did M&S go wrong?

Dec 21, 2022

Earlier this year, the Employment Tribunal found that Rita Jandu, a former Marks & Spencer Plc (M&S) employee with dyslexia, was unfairly dismissed and had been discriminated against by her employer on the basis of her dyslexia.

In November, the remedy hearing followed and the Tribunal awarded Ms Jandu £53,855 as a result of the conduct of M&S.  This included compensation for her loss earnings of £21,297.15 and an injury to feelings award of £22,000 amongst other awards for interest, loss of statutory rights and expenses.

Unusually for the Employment Tribunal, Ms Jandu was also successful in recovering 30% of her legal costs from October 2021 to March 2022 and 100% of her legal costs incurred between the liability hearing in March and the remedy hearing in November.  So, in addition to the total award above, M&S will have to pay a proportion of Ms Jandu’s legal costs, which could be up to £20,000.

Facts

Rita Jandu was employed by M&S as a Layout Planner from 17 March 2013 until her dismissal on 31 October 2020 by reason of redundancy. She had worked with M&S for more than two decades, having first commenced employment with them in August 1998 (albeit with a six week break in 2013). 

Ms Jandu was placed at risk of redundancy during a business restructure in July 2020, after she had been placed on furlough in April 2020 due to the Covid-19 pandemic. M&S utilised a redundancy scoring exercise to determine which employees to retain.  The scoring process looked at (i) the M&S Way (Behaviour); (ii) Technical Skills; and (iii) Leadership Skills and awarded employees a score from 1-4 (with 4 being the highest).  Ms Jandu scored 2 in behaviour and 3 in technical and leadership skills respectively.

During the consultation process, Ms Jandu suggested to her line manager that her dyslexia may have impacted her scoring and this was ignored and/or plainly rejected by M&S without any investigation into the same.  During the consultation process, it became apparent that Ms Jandu was marked down during the scoring process because of various alleged performance issues. These included mistakes and/or errors in her work; communication appearing rushed or having a lack of clarity; issues balancing workload; and the general tone of communications.  All of these elements, on Ms Jandu’s case, would be seriously impacted by her dyslexia.

It’s important to note that had Ms Jandu scored an additional point during the scoring exercise, she would not have been at risk of redundancy.  Despite the concerns she had raised during the consultation about the scoring, Ms Jandu was made redundant in September 2020, with M&S maintaining the position that she had not been discriminated against on account of her dyslexia.  Ms Jandu appealed that decision, once more highlighting her dyslexia and the impact that it may have had on her scores.  The appeal process once again ignored Ms Jandu’s dyslexia and the points she raised in respect of the same.  Her appeal was therefore dismissed and the decision to terminate her employment by way of redundancy was upheld.

 

Following her redundancy, Ms Jandu brought the following claims:

  • Discrimination arising from her disability (dyslexia);
  • Failure to make reasonable adjustments for her dyslexia;
  • Unfair dismissal; and
  • Age and race discrimination due to her part-time worker status (although these were later withdrawn by Ms Jandu).

 

The Judgment

The Employment Tribunal unanimously found that Ms Jandu had been unfairly dismissed and that M&S had discriminated against her on the basis of her dyslexia.  The Tribunal also found that M&S had failed to make reasonable adjustments for Ms Jandu’s dyslexia.  Critically, the Tribunal noted the following:

  • All the issues raised in the scoring for which Ms Jandu was marked down for, were a direct result of her dyslexia.
  • It was unreasonable for M&S to reject what Ms Jandu was telling them about the effects of her condition.
  • M&S had acted unreasonably in failing to take advice from Occupational Health (OH) when Ms Jandu raised that the matters that had led to her being selected for redundancy were connected to her dyslexia.
  • A reasonable adjustment would have been to discount any disability-related effects when assessing Ms Jandu against the redundancy selection criteria.
  • M&S’s failure either to accept Ms Jandu’s claim or to seek expert opinion on it was unfair and gave rise to an appearance of “closed minds and bias” against Ms Jandu.

 

M&S were also criticised for taking a high-handed approach to Ms Jandu’s concerns and the discriminatory treatment that those concerns exposed.  It was this conduct and M&S’s failure to engage in meaningful settlement negotiations that ultimately led the Tribunal to make a finding that M&S should be liable for a significant proportion of Ms Jandu’s legal fees.

 

What can other employers learn from M&S’s mistakes?

Employers should be mindful of situations arising where they are obligated to make reasonable adjustments for their employees living with disabilities. In the circumstances of the above, Ms Jandu had dyslexia and had made this known to M&S on several occasions.

M&S refused to take Ms Jandu’s dyslexia into account when upholding their selection criteria for redundancy and did not seek any advice from Occupational Health (OH). The Tribunal reached the decision that had OH been consulted, they would have advised M&S to review the British Dyslexia Association’s Code of Practice for Employers, which states that “selection criteria should not include fluency, speed of response or ability to process complex information quickly as these will indirectly discriminate against dyslexic candidates”. As the criteria used by M&S focussed on these aspects, Ms Jandu scored poorly. The Tribunal ruled that a reasonable adjustment for these purposes would have been to disregard the circumstances that resulted in Ms Jandu’s low scores when the reason she fell short was solely due to her disability.

For that reason, employers should ensure that they are not only complying with the legal obligations to make reasonable adjustments (which arise as soon as they know or could reasonably be expected to know that an employee has a disability), but also that they are creating an environment in which employees are encouraged to disclose conditions such as dyslexia so that they can access the support they need. This can come in many shapes and forms, including specialised software, additional time to complete tasks, and in Ms Jandu’s case, eliminating negative performance scores where the performance issue is directly attributed to the employee’s disability.

When an employer becomes aware of a disability, it is important to assess how that disability impacts the employee’s everyday work, possibly making it more challenging. It would also be prudent to seek advice from OH on how best to support these employees.  Particularly if the employee has disclosed the disability themselves and has highlighted the possible discrimination that is arising as a result.  Ignoring concerns or flatly rejecting the possibility that discrimination as a result of a disability is taking place is likely, as it did with M&S, to result in serious criticism from the Employment Tribunal and a finding of disability discrimination being made against an employer.

Finally, employers should take care when engaging in without prejudice settlement negotiations, both before, during and after an Employment Tribunal claim has commenced.  The decision to award Ms Jandu a proportion of her legal costs is unusual and so, whilst a robust approach to defending claims is to be expected, going too far and maintaining unrealistically low expectations for settlement may ultimately be more financially damaging to employers than the settlement itself.

For further information on Disability Discrimination and Unfair Dismissal or to discuss the issues raised by this caselaw update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Alex Harper

Alex Harper

Solicitor, Employment Law

t: 01276 854 925
e: alex.harper@herrington-carmichael.com

Rian Simmonds

Rian Simmonds

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