In January of this year, Joan Hutchinson won her employment tribunal case against Asda. Joan had worked with the retail chain for 20 years and resigned in 2020 after being treated “unfavourably”, following gradual signs of forgetfulness. The tribunal found that Asda’s conduct amounted to age and disability-related harassment, as well as direct age discrimination and discrimination arising from a disability.
Dementia is often thought of as something that affects people who have retired. But with state pension age rising and default retirement age a thing of the past, people will increasingly experience the first symptoms of dementia while at work. There are currently more than 42,000 people under 65 living with dementia in the UK, and numbers are on the rise. Around 209,600 people will develop dementia this year – that’s one every three minutes.
So how can employers make their workplaces dementia friendly and what are the legal duties that arise when an employee has dementia?
Dementia and legal issues
Under the Equality Act 2010, it is unlawful to discriminate against an employee on the basis of them having a disability.
Dementia will often fit the definition of disability (a physical or mental impairment that has a substantial and long-term adverse effect on someone’s ability to carry out day-to-day activities) and because dementia is a progressive condition, the law treats it as having a substantial adverse effect as soon as it has some impact on a person’s ability to carry out normal day to day activities.
Protection from discrimination applies to agency workers and casual or zero-hours workers, as well as employees. Importantly, where an employee is discriminatory towards a colleague, the employer can be found liable.
If a disabled employee is put at a disadvantage in the workplace, employers have an automatic duty to make reasonable adjustments to help the employee overcome that disadvantage. What is ‘reasonable’ will depend on many aspects, including:
the organisation’s size and resources;
how practical and effective the adjustments would be;
the cost (but note no costs incurred can be passed on to the employee);
the impact on other members of staff.
Employers can, and usually should, seek advice about adjustments, for example from an occupational health assessor.
The duty to make reasonable adjustment only kicks in where the employer knows, or ought to know, that the employee is disabled. This places a duty on employers to do all they can reasonably be expected to do to find out if an employee has a disability.
In the Asda case, Hutchinson had not told Asda that she had dementia. But the tribunal held that Asda had constructive knowledge of her disability, given it was aware of her symptoms of forgetfulness, inability to concentrate and confusion.
As a result, an employer may need to make changes to how things are done at work, for example:
adapting policies and procedures, (such as by reallocating a task to another employee or changing working hours);
making physical changes to the workplace if necessary, (for example, moving the person’s desk to a quieter area);
providing extra aids or support; or
introducing flexible working practices (however, home working can make it more difficult to identify when employees are in need of support, especially if they are reluctant to raise it with their managers).
Research suggests that there is still a long way to go in terms of communication. A survey carried out by the Alzheimer’s Society found that 36 per cent of people questioned who had dementia did not tell anyone at work about their diagnosis; 53 per cent admitted that their employer wasn’t supportive when they did; and 42 per cent said that with the right support and adaptations in place, they would have continued to work for longer.
By making managers aware of dementia and how it might affect their staff, they should be able to provide the right support to an employee at an early stage and avoid putting the organisation at risk of future disability discrimination claims.
Ben Stepney is an employment lawyer at Thomson Snell & Passmore