A dyslexic store layout planner was dismissed and discriminated against when she was selected for a redundancy process based on her ability to communicate and express her thoughts in emails.
The tribunal ruled that Marks and Spencer (M&S) did not seek expert opinion from occupational health about Ms Jandu’s dyslexia, and that it “discriminated against her because of things arising in consequence of her disability”.
The London Central Tribunal ruled that M&S’s selection criteria was unfair as it “contained no purely objective elements and left a great deal of scope for subjective opinion”.
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It also said that as a “large, well-resourced and long-established high street retail chain” there was “no reason [that] it cannot be expected to comply with generally applicable employment law principles”.
Jandu’s claim for discrimination and unfair dismissal was upheld but further claims of age discrimination, race discrimination and discrimination because of her part-time worker status were dismissed upon withdrawal.
Jandu had been employed as a layout planner at M&S from 17 March 2013 until her dismissal on 31 October 2020, and was regarded as a “high performer” by her manager.
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Jandu made her line managers – Ms Sharp, and then from 2019 Miss Gaskell – aware of her dyslexia, and asked Sharp for specific adjustments, such as colour coding important parts of long emails, as Jandu said she “struggled to read the text”. The tribunal heard Sharp “never did this, despite reminders”.
While Sharp proofread important emails for colleagues and Jandu, the tribunal heard that Jandu “felt more comfortable” asking a colleague over Sharp, and did so “on a weekly basis”. But Jandu did not seek any other adjustments for her dyslexia before the redundancy process.
Gaskell joined the team in 2019 and the tribunal heard that she had informal one-to-one meetings with Jandu every other week. In March 2020, Jandu alleged that Gaskell said she was a “high performer”, which Gaskell denied, but the tribunal found that she did, as meeting notes later confirmed that Gaskell said Jandu was “one of the high performers on the team”.
The tribunal also found that at no point in any one to ones did Gaskell give feedback to Jandu about her communication tone in emails, inaccuracies in plans or about being overly compliant when asked by others to do something.
The tribunal found that the pandemic impacted the business and, around July 2020, it decided to restructure the business and begin a formal process of redundancy consultation.
The selection process was weighted on a system in which behaviour, technical skills and leadership skills were scored on a four-point scale, with four being the highest.
Jandu scored two on behaviour, which was classed as ‘inconsistent’, and three on leadership and technical skills, classed as ‘consistent’, giving her an overall score of 70 per cent. The tribunal noted that if Jandu had scored one extra point she would have “tied” with two other members of staff.
In August 2020, Jandu was notified that she was at risk of redundancy and invited to a first individual consultation meeting on 2 September 2020.
The tribunal heard that Gaskell marked Jandu down on behaviour principally because of a failure to “challenge and cut down on red tape” and felt that was where the score dropped in comparison to other colleagues.
Jandu voiced her concern that she had not received feedback previously that she was a poor performer, while Gaskell “sought to reassure her” that that was not the point of the process.
The tribunal heard that during the second individual consultation meeting on 4 September 2020, Jandu complained that her dyslexia was “raised as evidence”. While there are no details on how, or why, this was raised, the tribunal heard that Jandu said her dyslexia affected the tone of her emails. She said that “for this to be raised as evidence is appalling”, and also that writing emails was “the worst part” of her day.
The tribunal heard that Gaskell reiterated that “none of the assessments” linked Jandu’s dyslexia, but explained the scores could not be changed and was not able to give more examples to justify her score.
A third consultation meeting was arranged at Jandu’s request on 15 September, and she said the evidence suggesting she needed to think about “the tone and audience” of her emails was a direct result of her dyslexia, which she found to be “unfair and unjust”.
Gaskell reiterated that it was “not linked” to dyslexia, but about the “forming of an email, or errors or written style; it was relating to the tone for the end user”. The tribunal heard she then took a break to “take advice from HR” and, upon her return, said she was “absolutely confident” the process was fair.
However, the tribunal found there were no notes of Gaskell’s conversations with HR from 15 September 2020. Previous notes from 7 September did not indicate that Gaskell took any advice on Jandu’s dyslexia.
On 15 September, Jandu was notified that her employment would be terminated. Jandu appealed on the grounds that Gaskell proofread “every single email” and never raised the issue of her tone previously, but she was not successful.
Judge H Stout said M&S “failed to make reasonable adjustments for her disability and discriminated against her because of things arising in consequence of her disability”.
The tribunal also considered that even if M&S had not unlawfully discriminated against Jandu in its application of the selection criteria, it was still unfair: “These selection criteria made it difficult for managers to apply them fairly and objectively. While we accept that the criteria were acceptable in the light of the case law we have identified above, they contained no purely objective elements and left a great deal of scope for subjective opinion.
“In this case, Gaskell allowed her perception that [Jandu] was prone to ‘rushing’ and ‘inaccuracies’ to count against her in relation to all three criteria.”
Stout said: “Even if the claimant were not disabled, we further consider that it was unfair for the respondent to decide against her that what she was saying about the link between her dyslexia and the things for which she had been marked down was incorrect without obtaining advice from occupational health on that.”
The judge decided that Jandu was entitled to £53,855.99 compensation.
"Companies should always bear in mind the duty to make reasonable adjustments in all aspects of the employment life cycle,” said Sarah Bull, partner at Wilsons Solicitors. “When considering redundancy selection criteria employers should consider if any employees who are to be placed in the pool for redundancy have disabilities and, if so, what adjustments might be necessary to ensure that disability-related effects are discounted."
Amanda Trewhella, employment director at Freeths, said the case was “a good reminder to employers that they should consider appeals with an open mind and give due consideration to the points the employee has raised”.
An M&S spokesperson said: “We are disappointed by the tribunal’s decision. We ensure that all line managers conducting assessments for redundancy exercises complete mandatory training so that scoring is fair and objective. We pride ourselves on being an inclusive place of work for all colleagues, regardless of ability.”
Jandu could not be reached for comment.