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Ms R Jandu v Marks and Spencer: Dyslexic shop worker discriminated against

A former Marks & Spencer employee has been awarded more than £50,000 after an Employment Tribunal found that she had been unfairly dismissed and discriminated against.

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Published 16 December 2022

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The case serves as a cautionary tale for employers approaching a redundancy exercise and highlights the pitfalls that even large employers may fall into when seeking to dismiss employees.

Ms Jandu, who is dyslexic, had worked for the well-known retailer for some 22 years when she was dismissed by reason of redundancy.

Having been scored against redundancy selection criteria which assessed her Leadership Skills, Technical Skills and Behaviours, Ms Jandu argued that she had been unfairly marked down on areas of her performance that were linked to her Dyslexia.

The notes taken during the assessment revealed some of the reasons behind Ms Jandu’s lower scores. These included a perception that her emails were ‘rushed’ as they tended to be brief, set out in bullet points and contain errors of spelling and construction. It was also commented that Ms Jandu sometimes had issues with time management, made mistakes and failed to adapt the tone of her written communications to different audiences.

The Tribunal accepted Ms Jandu’s evidence that each of these factors, which counted against her in the application of the redundancy selection criteria, arose in consequence of her disability.

Her Dyslexia means that Ms Jandu struggles with reading and must often re-read the same text multiple times before she can follow what is being conveyed. These difficulties, alongside weaknesses in working memory, make it harder for Ms Jandu to comprehend longer emails and so she is more likely to make mistakes.

Ms Jandu’s difficulties with reading and writing also meant that she had trouble spotting errors in her work and would seek proof-reading support from colleagues, despite asking her Line Manager for such support on a weekly basis.

Although they appeared rushed, Ms Jandu in fact took a long time and great care over writing emails, which she described as ‘the worst part of her day’. As a coping mechanism, Ms Jandu tried to keep emails short and would struggle to find the right words for the level of detail that her Line Manager thought appropriate.

The Tribunal also reasoned that someone who takes longer to read and write is likely to have more difficulty with time management than someone who does not, especially under time pressure.

Marks & Spencer was unable to show that dismissing Ms Jandu was a proportionate means of achieving a legitimate aim, especially as, on its own evidence, the performance difference between Ms Jandu and her peers was marginal. The employer was under a duty to make reasonable adjustments when applying its selection criteria to Ms Jandu but failed to do so.

The Tribunal found that Marks & Spencer should have discounted the effects of Ms Jandu’s disability in her assessment. Having done so, it could still have retained the best talent, as determined following a fair and consistent process that did not discriminate unlawfully against disabled people.

Ms Jandu’s complaint of unfair dismissal was also upheld. Even if Marks & Spencer had not unlawfully discriminated against her in its application of the selection criteria, the criteria itself contained no purely objective elements and left a great deal of scope for subjective opinion.

The Tribunal also criticised the employer’s assumption, without any investigation, that Ms Jandu was lying or mistaken about the link between her Dyslexia and the negative scores. Failure to consider the points Ms Jandu had made, or to obtain specialist advice from Occupational Health, was said to give rise to the appearance of closed minds and bias against Ms Jandu.

When applying redundancy selection criteria, employers would be well advised to consider whether any of the employees who are to be placed in the redundancy pool have disabilities. If they do, reasonable adjustments must be considered to ensure that any disability-related effects are discounted.

The case is also an important reminder that any performance issues should be raised promptly and, where performance is found to be impacted because of a disability, reasonable adjustments should be made.

Finally, employers should ensure that they have robust processes in place when approaching a redundancy exercise and must be prepared to set out clear reasons for the decisions made.

For more information, visit our Employment Lawyers page.

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Longer Reads

Ms R Jandu v Marks and Spencer: Dyslexic shop worker discriminated against

A former Marks & Spencer employee has been awarded more than £50,000 after an Employment Tribunal found that she had been unfairly dismissed and discriminated against.

Published 16 December 2022

Associated sectors / services

Authors

The case serves as a cautionary tale for employers approaching a redundancy exercise and highlights the pitfalls that even large employers may fall into when seeking to dismiss employees.

Ms Jandu, who is dyslexic, had worked for the well-known retailer for some 22 years when she was dismissed by reason of redundancy.

Having been scored against redundancy selection criteria which assessed her Leadership Skills, Technical Skills and Behaviours, Ms Jandu argued that she had been unfairly marked down on areas of her performance that were linked to her Dyslexia.

The notes taken during the assessment revealed some of the reasons behind Ms Jandu’s lower scores. These included a perception that her emails were ‘rushed’ as they tended to be brief, set out in bullet points and contain errors of spelling and construction. It was also commented that Ms Jandu sometimes had issues with time management, made mistakes and failed to adapt the tone of her written communications to different audiences.

The Tribunal accepted Ms Jandu’s evidence that each of these factors, which counted against her in the application of the redundancy selection criteria, arose in consequence of her disability.

Her Dyslexia means that Ms Jandu struggles with reading and must often re-read the same text multiple times before she can follow what is being conveyed. These difficulties, alongside weaknesses in working memory, make it harder for Ms Jandu to comprehend longer emails and so she is more likely to make mistakes.

Ms Jandu’s difficulties with reading and writing also meant that she had trouble spotting errors in her work and would seek proof-reading support from colleagues, despite asking her Line Manager for such support on a weekly basis.

Although they appeared rushed, Ms Jandu in fact took a long time and great care over writing emails, which she described as ‘the worst part of her day’. As a coping mechanism, Ms Jandu tried to keep emails short and would struggle to find the right words for the level of detail that her Line Manager thought appropriate.

The Tribunal also reasoned that someone who takes longer to read and write is likely to have more difficulty with time management than someone who does not, especially under time pressure.

Marks & Spencer was unable to show that dismissing Ms Jandu was a proportionate means of achieving a legitimate aim, especially as, on its own evidence, the performance difference between Ms Jandu and her peers was marginal. The employer was under a duty to make reasonable adjustments when applying its selection criteria to Ms Jandu but failed to do so.

The Tribunal found that Marks & Spencer should have discounted the effects of Ms Jandu’s disability in her assessment. Having done so, it could still have retained the best talent, as determined following a fair and consistent process that did not discriminate unlawfully against disabled people.

Ms Jandu’s complaint of unfair dismissal was also upheld. Even if Marks & Spencer had not unlawfully discriminated against her in its application of the selection criteria, the criteria itself contained no purely objective elements and left a great deal of scope for subjective opinion.

The Tribunal also criticised the employer’s assumption, without any investigation, that Ms Jandu was lying or mistaken about the link between her Dyslexia and the negative scores. Failure to consider the points Ms Jandu had made, or to obtain specialist advice from Occupational Health, was said to give rise to the appearance of closed minds and bias against Ms Jandu.

When applying redundancy selection criteria, employers would be well advised to consider whether any of the employees who are to be placed in the redundancy pool have disabilities. If they do, reasonable adjustments must be considered to ensure that any disability-related effects are discounted.

The case is also an important reminder that any performance issues should be raised promptly and, where performance is found to be impacted because of a disability, reasonable adjustments should be made.

Finally, employers should ensure that they have robust processes in place when approaching a redundancy exercise and must be prepared to set out clear reasons for the decisions made.

For more information, visit our Employment Lawyers page.

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