The case involved an employee of the well-known retailer who had dyslexia (a condition which had been diagnosed and about which her line managers were aware). The employee’s complaint in tribunal concerned redundancy selection in terms of which the scoring did not account for her dyslexia (she argued that there was a failure to make reasonable adjustments) and which she alleged constituted discrimination related to her disability. The tribunal upheld her complaints and found that her resulting dismissal for redundancy was unfair.
The redundancy exercise arose in the context of the Coronavirus pandemic which significantly affected the employer’s business. In July 2020, a restructure was proposed and a formal consultation process commenced across a number of business units including the team in which Ms Jandu worked. Redundancy selection criteria were agreed with Marks and Spencer’s employee representative body focusing on behaviours, technical skills and leadership skills.
In applying the redundancy selection criteria to Ms Jandu, Marks and Spencer marked her down on inaccuracies in written communications and scored her poorly due to her managers’ perception that she “rushed” her work. In response, she argued that the company failed to make reasonable adjustments for her dyslexia and that the basis of scoring consisted of a policy which put her at a substantial disadvantage due to her disability, specifically in that the criticisms of her work (relating to accuracy, consistency and “rushing” things) were applied to all three of the key areas assessed, including leadership skills.
The tribunal concluded that:
- there was a duty to make reasonable adjustments which the employer failed to discharge once Ms Jandu’s dyslexia was raised in the context of the redundancy scoring and that Marks and Spencer should have disregarded the effects of her disability in assessing her performance;
- the employer unlawfully discriminated against Ms Jandu by treating her less favourably due to “something” arising in consequence of her disability (the “something” consisting of issues with accuracy, time management and what was described as her “overly compliant” approach) in circumstances where there were fairer, more proportionate, ways of achieving its purposes; and
- Marks and Spencer’s handling of the redundancy process and the fact they refused to acknowledge the impact of Ms Jandu’s disability on her performance without seeking an expert view or carrying out any investigation was outside the range of reasonable responses and therefore rendered the dismissal unfair.
It follows that the employer’s position might have been stronger and/or the claims unsuccessful if Marks and Spencer’s redundancy selection criteria had been more objective (instead, there was a lot of scope for subjective interpretation) and they had taken advice on the impact of Ms Jandu’s disability on the attributes and qualities scored in the redundancy exercise and adjusted accordingly.
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Related Resources:-
See our note on Disability.
See our note on Protected Characteristic of Disability
