Redundancy selection criteria discriminates against dyslexic shop worker

A dyslexic store layout worker with M&S has won a claim for discrimination when she was selected for redundancy because of communication and email writing abilities. Central to the case was the failure of M&S to obtain advice from occupational health about the employee’s dyslexia and to then apply reasonable adjustments to her scoring against the selection process.

The employee Ms Jandu worked as a layout planner and was identified as “one of the higher performers on the team” by her manager.

Ms Jandu had informed her manager that she had dyslexia and asked for adjustments including for the colour coding of important parts of emails because of her difficulties in reading text. Ms Jandu’s manager also proofread important emails for her.

At no point during the fortnightly 1-2-1 meetings did the manager inform Ms Jandu of concerns about her tone in emails, inaccuracies in plans or explain she was over-compliant with requests from colleagues.

Then in July 2020 a restructure was conducted and redundancy consultation began. Selection criteria based on behaviour, technical skills and leadership skills were applied to Ms Jandu’s team. Ms Jandu was scored low for behaviours and deemed “inconsistent.” The manager said Ms Jandu’s failure to challenge and reduce red tape resulted in this low score.

During consultation the employee’s dyslexia was raised. Ms Jandu said her dyslexia affected the tone of her emails and writing emails was the worst part of her day. Ms Jandu argued that being told by her manager to think about the tone and audience of her emails was unfair and unjust because of the direct link to her dyslexia. However, the company’s position was unchanged and she was dismissed on the grounds of redundancy.

The tribunal found that M&S failed to make reasonable adjustments for Ms Jandu’s disability and consequently discriminated against her because of the consequences of her disability.

The tribunal found the M&S selection criteria were difficult for managers to apply fairly and objectively. The criteria contained no objective elements and left too much scope for subjective opinion.

It was found that because M&S did not obtain advice from occupational health on the impact the dyslexia had on the areas that Ms Jandu scored low was also unfair. The manager should have taken and then applied the advice of occupational health. The employer should have made reasonable adjustments due to a disability.

Learning for employers

• Employers must ensure workplaces are inclusive environments where employees are treated fairly and in compliance with legislation. Line managers need to be trained on how to avoid discriminating against pregnant employees at each stage of the employment journey.
• Utilise occupational health to consider how scoring systems should be adapted for employees with disabilities such as trigger points for absence, appraisal ratings, scoring of selection criteria, etc.
• Discriminatory practices can slip into recruitment processes and selection decisions, in granting access to training, in promotion or development opportunities, in determining pay rates and organisations restructuring.
• Managers at all levels have a duty to ensure pregnant workers are protected from unfair practices.

Source: Gavin Parrott