Case study – is suggesting retirement to an unwell employee a good idea?
28 February 2022
Many employers seek to act in an employee’s best interests but it can be risky where there is a conflict between what the employer and the employee thinks is best for them. An Employment Tribunal was recently tasked with considering a variety of claims arising from an employer’s suggestion of retirement to an employee who had been diagnosed with dementia and the outcome is one which employers will want to take note of.
In Mrs J Hutchinson v Asda Stores Limited, Mrs Hutchinson was employed as a shop floor assistant at an Asda store. She had worked for Asda for 20 years and was 73 years old by the time of her resignation.
Mrs Hutchinson’s son had observed that from around 2017, she was exhibiting signs of dementia. Mrs Hutchinson was diagnosed with Mild Cognitive Impairment in October 2019 and although this was not known by her employer at that time, her colleagues had noticed a deterioration in her presentation.
In March 2020, Mrs Hutchinson was obliged to leave work and to shield owing to the pandemic. Mrs Hutchinson shielded for 12 weeks and during that time, her manager telephoned her several times to check on her wellbeing. On two occasions after such calls were made, Mrs Hutchinson reported to her daughter that her manager had asked her if she wanted to retire. Mrs Hutchinson had replied that she did not want to retire and she was left feeling upset and unwanted by her employer.
Mrs Hutchinson attended a return to work meeting with a more senior manager in June 2020 and her daughter attended with her. During the meeting Mrs Hutchinson’s daughter mentioned that her mother had been upset about being asked by her manager if she wanted to retire and the senior manager was asked to ensure that she would not be bullied or harassed going forwards.
Mrs Hutchinson was diagnosed with mild mixed dementia on 2 July 2020 but this was not reported to Asda.
Mrs Hutchinson returned to work on a week later but her manager was concerned about her behaviour. Before she left work Mrs Hutchinson was apparently struggling to find her keys and bus pass which were in her bag. A deputy store manager rummaged in her bag to find them for her. Mrs Hutchinson later reported this to her daughter and was upset by it.
The next day a meeting was held with Mrs Hutchinson and there was discussion about her behaviour. Mrs Hutchinson was said to have become upset, saying that she did not need help and that if she did, she would ask for it. Her manager asked her if she would speak to Occupational Health and Mrs Hutchinson said “I can’t do my job, I will leave,” before walking out. She did not return to work and was signed off sick.
Mrs Hutchinson’s son then raised a grievance on her behalf in which he stated: “I believe Mrs Hutchinson has solid grounds to resign and claim constructive unfair dismissal due to ongoing bullying, harassment and discrimination on the grounds of age and disability”. The grievance was not upheld. Mr Hutchinson then wrote a letter on behalf of his mother, resigning with immediate effect.
Claims for constructive unfair dismissal, age and disability-related harassment, direct age discrimination and discrimination arising from disability were then submitted to the Employment Tribunal.
The Employment Tribunal’s findings
The Tribunal found that Mrs Hutchinson was disabled due to her dementia and that although her employer was unaware of that diagnosis, they ought reasonably to have known that she was disabled. With the knowledge that she was forgetting things, getting confused and needing greater assistance to carry out her role, her employer was considered to be on notice that she had symptoms of a mental impairment. The Tribunal added that prior to Mrs Hutchinson’s return to work from lockdown her employer should have investigated her symptoms via a referral to Occupational Health.
The Tribunal found that Mrs Hutchinson was constructively dismissed on the basis that her employer’s conduct in making multiple suggestions of retirement which “may have been said in a well-meaning way” breached the implied term in her contract of trust and confidence. It also amounted to direct age discrimination, age-related harassment and discrimination arising from disability.
With regard to conduct around helping with her bag, the Tribunal said her colleagues’ actions had the effect of violating her dignity, noting the conduct was unwanted and related to her condition because it was brought about by her memory impairment and so amounted to disability-related harassment.
A claim relating to a failure to make reasonable adjustments was unsuccessful.
This case is a reminder to employers to be very careful when speaking to employees and making suggestions that they think are in the employee’s best interests, without full consideration of how the employee is likely to react to this. As the Employment Tribunal noted, the employer should have referred their employee for an Occupational Health assessment once they had concerns over her presentation and had they done so, things are likely to have gone in a way that avoided the need for Tribunal proceedings. Taking legal advice on sensitive matters like this can add objectivity and clarity to what can be difficult decisions to make for even the most well-meaning of employers.
If you are an employer dealing with a problem with an unwell employee, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].