A recent case to hit the employment tribunal has highlighted the need for employers to take care in relation to discussions around retirement, after it was ruled that a 73-year-old Asda worker had been constructively unfairly dismissed.
The employment tribunal upheld that Asda worker Mrs Hutchinson had been constructively unfairly dismissed and discriminated against on the basis of age and disability after she was repeatedly asked if she wanted to retire.
What are the facts of the case?
The case centres around Mrs Hutchinson, who worked in the clothing department of Asda in Queensferry. Colleagues of Mrs Hutchinson began to notice some changes to her behaviour in February 2020; that she seemed to be “appearing confused, losing keys and forgetting things”. A conversation was held with Mrs Hutchinson, during which the question of retirement was first raised. Mrs Hutchinson was reportedly offered, but refused, an appointment with occupational health at this time.
Due to the first lockdown in March 2020, Mrs Hutchinson began shielding due to her age and therefore did not attend work for a period of over three months. During this time, Mrs Hutchinson received visits and phone calls from her line manager, again during which the question of retirement was reportedly raised.
Mrs Hutchinson was due to return to work in July 2020 and a meeting was arranged, attended by Mrs Hutchinson, her daughter and a trading manager at the Asda store. During the meeting, which largely covered social distancing and other new safety measures being introduced, Mrs Hutchinson’s daughter discussed the repeated mentioning of retirement by Asda staff members and how this had upset her mother, making her feel unwanted in her job. Despite previous concerns having been raised, no referral to occupational health was made at the time.
Upon returning to work on 9th July, Mrs Hutchinson was reported to be flustered, jittery and confused about how she was due to be getting home. A Deputy Store Manager went through Mrs Hutchinson’s bag to try and help her find her keys.
The following day, a meeting was held by Mrs Hutchinson’s line manager to discuss the incidents. Mrs Hutchinson refused to speak to occupational health and walked out of the meeting upset. Mrs Hutchinson was thereafter signed off sick.
A grievance was raised by Mrs Hutchinson’s son on 27th July on behalf of his mother, and a hearing took place on 27 August. The grievance was not upheld.
A letter of resignation was then written to Asda on 25 September, stating that Mrs Hutchinson had been discriminated against on the grounds of her age and disability.
What did the tribunal rule?
The tribunal found that the employer’s conduct amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability. The judge found that Asda had breached the “implied term of trust and confidence” and therefore, that she had been constructively dismissed.
The repeated mentioning of retirement was cited as direct age discrimination, and because it was raised more than once, also amounted to age-related harassment.
What have we learned from this case?
This case has highlighted the sensitive nature of questioning employees around their retirement plans, whilst also showing a clear need for occupational health to get involved at an early stage where employees display signs of potential mental impairment.
We are now living in times where there is no default retirement age, and many people are choosing to work well into their later years. Even if well-meaning, this case has shown that suggestions that a member of staff should retire could amount to age discrimination.
With an ageing workforce here to stay, there is a growing need for employers and managers to be fully trained around issues relating to mental impairment, such as the signs of dementia, so they can be better tuned in to older employees exhibiting such symptoms.
This case also illustrates that as far as Health and Safety is concerned, employers often concentrate on Safety and forget Health. There should be equal weight to both these aspects of Health and Safety Management. Employees are entitled to work in a safe environment where any risks to their Health are controlled, not just for their physical health but also for their mental health. That means assessing how work and the environment can impact employees health (both physical and mental) and includes how worker’s health can affect their ability to do their job.
COVID 19 has shone a spotlight on mental health at work. According to HSE statistics in 2019/20 32.5 million days were lost due to work-related ill-health and of those 17.9 million working days were lost due to mental ill-health (stress, depression and anxiety). It is important that employers are implementing health or medical surveillance when necessary, ensuring employees are medically fit to undertake their work and ensuring that risk assessments are reviewed for employees with a health condition or are returning after sickness absence.
If you are an employer and are grappling with an employment or Health and Safety issue that involves a potential disability, please do not hesitate to contact us on 01942 727200 and speak to one of our HR / HS consultants for an initial consultation without charge or obligation.