M&S Employee Wins £53,855 for Dyslexia Discrimination and Unfair DismissalFree 20 minutes employment consultation
Ms Jandu was employed by Marks and Spencers (M&S) from the 17th March 2013 until the 31st October 2020, when she was dismissed. M&S claimed the reason for dismissal was her redundancy. However, Ms Jandu believes she went through an unfair dismissal as well as dyslexia discrimination. This is because she claims M&S failed to make reasonable adjustments and victimised her under the Equality Act 2010.
Ms Jandu’s M&S Employment Background:
M&S employs approximately 80,000 people. Approximately 370 people worked at the site where Ms Jandu was employed.
During her employment, Ms Jandu worked part-time (32 hours per week) as a Layout Planner. Of these hours, she worked two days at home per week.
She had responsibility for the Menswear Business Unit. In this job role, team members are given responsibility for their own time management and could take breaks when required.
How Dyslexia Can Affect Employment
In 2009 Ms Jandu was diagnosed with Dyslexia which was confirmed by her GP.
- A weakness in working memory
- A weakness in her ability to process visual information at speed
- Below average single word reading range
- Not well-developed decoding skills
- Below average sentence comprehension
- Issues with tracking lines of text when reading
- A need for a break after 20 minutes of reading due to concentration issues
During her employment, she experienced issues relating to tasks involving reading and replying to complaints. She added that she feels her listening skills were affected due to her auditory working memory.
What Can Employers Be Aware of to Prevent Dyslexia Discrimination?
The British Dyslexia Association Code of Practice for Employers provides guidance as follows in relation to the condition of Dyslexia:
- “Dyslexic people can be particularly prone to stress due to managing workloads without effective coping strategies.”
- “Dyslexia can affect organisational, reading and writing skills and also the ability to manage and process information,”
- “Selection criteria should not include fluency, speed of response or ability to process complex information quickly as these will indirectly discriminate against dyslexic candidates.”
- “Some dyslexic people need more time to take on board what is being said and to organise a reply. They may have difficulty with verbal fluency and recalling the right word, particularly in the heat of the moment.”
- “Listening, organising what to write, and writing while continuing to listen can cause system overload.”
Workload Management with Dyslexia
Ms Jandu stated that her Dyslexia made it harder for her to manage her workload as it took her longer to do “everything”. She added that at no point in her employment she was informed that she was struggling with her workload. However, most days she would inform her employers that she still has things to do. She states she never got feedback regarding why things were not done.
Ms Jandu told her line managers about her Dyslexia and claimed specific adjustments. One example of a request she made was if important parts of emails could be colour coded and if emails could be kept short. Despite frequent reminders, Ms Jandu’s line managers never did this.
When a new line manager took over in 2019, Ms Jandu asked for the same requirements. However, the new line manager stated that Dyslexia did not impact her work at all, although M&S disputes this.
Apart from the above requests, Ms Jandu did not seek any other adjustments for her Dyslexia from her employers prior to the redundancy process. This was because she did not realise that she may need any additional support as prior to the redundancy exercise no one had ever raised any concerns with her about her performance or her style of communicating.
Before starting the redundancy process, Ms Jandu’s line manager stated she was showing elements of ‘high performance.’ Other reports from management had stated Ms Jandu is “absolutely brilliant,” “technically fantastic,” and that her “level of support is rare.”
Unfair Dismissal and Dyslexia Discrimination
Post-Covid it was decided that the business would restructure, cutting the 11 current roles for the department Ms Jandu worked in down to 6. During the assessment members of the team were given the opportunity to provide their evidence for the managers to consider. After the managers, one of whom had no experience in such assessments, finished scoring all the team members, Ms Jandu was at risk of redundancy.
Following the assessment, she was notified of the risk and invited to an individual consultation in which she was allowed to raise any questions regarding the assessment. Ms Jandu challenged the issues raised by her line manager. This included issues such as Ms Jandu’s tone in emails as well as emails not being informative enough and sometimes with mistakes which she attributed to her Dyslexia.
She also voiced her concerns that she had not received any feedback previously about being a poor performer. After the meeting, examples of mistakes she had made were requested although she was informed no more examples could be given.
Ms Jandu confirmed that she had not applied for any internal roles. At the hearing, she added that she had not felt able to do so as she was so upset about losing the job that she loved and leaving the employer for whom she had worked a very long time.
At the end of the process, six staff remained in employment, one of whom also has Dyslexia.
Dyslexia Discrimination and Unfair Dismissal Appeal
In her appeal form Ms Jandu complained about Dyslexia discrimination in the process, and about the assessment of her work. She adds that she had been marked down for behaviour when she had been told not to concentrate on that when providing self-assessment evidence.
Legal Proceedings Against M&S
Ms Jandu instructed solicitors on 28 October 2020, and they sent a letter before the claim to M&S. In the letter, they set out Ms Jandu’s allegations. They suggested that they should have considered keeping Ms Jandu on furlough and that advice should have been sought from Occupational Health.
The Court’s Outcome Regarding Ms Jandu’s Dyslexia Discrimination and Unfair Dismissal
The court found Ms Jandu always met the definition of disability.
“We have concluded that the Claimant’s (Ms Jandu) difficulties in relation to each of these day-to-day activities materially counted against her in a redundancy process that resulted in her dismissal, there can be no doubt that the extent of the Claimant’s difficulties was ‘substantial’ within the statutory definition.”
The court decided that her dismissal was unfair because:
- M&S failed to adjust for her disability and therefore she experienced Dyslexia discrimination.
- M&S is a large, well-resourced, and long-established street retail chain and has no reason not to comply with generally applicable employment law principles.
- Using the same selection criteria puts Ms Jandu at a disadvantage due to Dyslexia discrimination.
- Unwillingness to seek expert opinion from Occupational Health about the link between Ms Jandu’s Dyslexia and the things from which she was marked down.
- A failure to provide all the information at the appeal stage.
- Using things about Ms Jandu that were not a part of the assessment criteria as reasons for her dismissal.
- A failure to provide a diverse panel.
The outcome of the Dyslexia Discrimination and Unfair Dismissal Court Case Against M&S
It follows that the court found that the Ms Jandu’s claim of unfair dismissal was well-founded.
The Remedy Hearing took place in November 2022. Ms Jandu was awarded over £50,000 in compensation.
Employment Judge Holly Stout ruled: “In this case, [her manager] allowed her perception that [Ms Jandu] was prone to “rushing” and “inaccuracies” to count against her. These were things caused by her disability.”
“The adjustment proposed by [Ms Jandu] is that [M&S] should have discounted any disability-related effects when assessing [her] against the redundancy selection criteria.”
“We agree that this would have been a reasonable adjustment.”
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