Supermarket worker with dementia was discriminated against after employer suggested she retire, tribunal rules

Experts urge caution and warn ‘well-meaning’ comments can still land companies in legal hot water

A supermarket worker with dementia was constructively unfairly dismissed and a victim of disability and age discrimination after her employer asked her if she wanted to retire, a tribunal has ruled.

Joan Hutchinson, who was 73 at the time, had worked at retail chain Asda’s Queensferry store for 20 years and resigned on 25 September 2020 after being treated “unfavourably”, including being asked about retirement and having her bag searched without permission. 

The tribunal found Hutchinson’s subsequent resignation only happened after her employer breached the “implied term of trust and confidence", meaning she was constructively unfairly dismissed. Claims of age and disability-related harassment were also upheld.

However, a claim for a failure to make reasonable adjustments was dismissed. 

Hutchinson’s son Chris had noticed his mother was displaying symptoms of dementia in 2017 and she was diagnosed with mild cognitive impairment on 30 October 2019, which Asda was unaware of.

By February 2020, the tribunal heard that colleagues, including Stacey Weston-Laing, section leader of the store’s clothing department, were concerned that Hutchinson had been “appearing confused, losing keys and forgetting things”.

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Hutchinson reportedly refused occupational health input and did not allow Asda to contact her family, and during a conversation with the people trading manager the suggestion of retirement was first introduced.

When the first lockdown was implemented in March 2020, Hutchinson began shielding because she was over 70. It was during this time, on 2 July, that she was diagnosed with mild mixed dementia.

During those months, the tribunal heard Weston-Laing was supportive of Hutchinson. She delivered shopping and spoke to her on the phone, which was when Hutchinson reported to her daughter, Joanne Clitherow, that Weston-Laing had asked her at least twice whether she wanted to retire. Weston-Laing denied this. 

Clitherow told the tribunal that this had upset her mother as she felt Asda “did not want her any more”.

Hutchinson was invited to a meeting on 26 June with Barry Hawkeswood, George and general merchandise trading manager, to discuss her return to work. Clitherow also attended for moral support. 

While the meeting mostly focused on changes to work arrangements, such as start and finish times and social distancing rules, Clitherow told Hawkeswood that Weston-Laing had asked Hutchinson if she wanted to retire. Clitherow asked Hawkeswood to ensure that her mother would not be bullied or harassed going forward.

Hawkeswood reportedly spoke to Weston-Laing after the meeting, who said Hutchinson had broached the subject of retirement with her, and the matter was left.

Hutchinson returned to work on 9 July 2020. That day, the tribunal heard, Weston-Laing was concerned because Hutchinson was “flustered” and “observed to take longer to work stock and was jittery trying to hang returns”. Hutchinson was also confused about how she was getting home, and Weston-Laing helped her.

Before leaving the store, Hutchinson struggled 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 and Hutchinson later reported this to her daughter and was upset.

The next day, Weston-Laing conducted a meeting with Hutchinson and the general store manager, where there was discussion about Hutchinson losing her keys and the bus pass and the events concerning her getting home. Hutchinson became “upset and aggressive”, saying that she did not need help and that if she did, she would ask for it. 

Weston-Laing asked Hutchinson if she would speak to occupational health and 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. 

The tribunal said that, given the background of retirement suggestions, Asda’s raising of concerns with Hutchinson was “unwanted” and “created a humiliating environment”.

On 23 July, Hutchinson’s son Chris Hutchinson raised a grievance on behalf of his mother, and a hearing took place on 27 August, where the grievance was not upheld. It was suggested that Hutchinson meet with management again after an occupational health referral, which was arranged for 28 September, so that her return to work could be properly managed.

On 25 September, Chris Hutchinson wrote a letter on behalf of his mother, resigning with immediate effect on the basis that she had been discriminated against on the grounds of her age and disability. She was offered the opportunity to reconsider but she did not take it and her employment terminated on 6 October 2020. 

The tribunal found that Hutchinson was constructively dismissed on the basis that her employer’s conduct, which amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability, breached the “implied term of trust and confidence”.

The multiple suggestions of retirement to Hutchinson “may have been said in a well-meaning way” but amounted to age-related harassment and direct age discrimination, according to the tribunal. “It made the claimant feel as though she was being pushed out of the business or that the respondent felt that she was too old to be there,” the tribunal said.

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. 

Keely Rushmore, employment law partner at Keystone Law, said this case signified the need to ensure managers are fully trained around these issues, and cautioned that employers need to “exercise caution in relation to older employees exhibiting symptoms of ill-health”.

“Employers and managers need to be aware that even seemingly well-meaning comments and actions can be held to amount to discrimination,” she explained, highlighting that asking an older employee if they would like to retire is “inevitably risky”. 

Instead, she suggested firms can ask all employees what their future work plans and aspirations are, adding “a retirement policy can be very helpful as it can set out a framework for employees to feel comfortable in raising and discussing their retirement plans”. 

An Asda spokesperson said: "Asda is an inclusive employer that is proud to employ colleagues of all ages. We apologise to Ms Hutchinson for her experiences.’’

Hutchinson could not be reached for comment.