An Employment Tribunal in London has upheld a claim for disability discrimination against Starbucks brought by a dyslexic employee. Dyslexia generally presents difficulties with words and numbers and sufferers need to be shown how to do tasks visually. Ms Kumulchew made mistakes due to difficulties with reading, writing and telling the time but Starbucks accused her of falsifying documents, downgraded her duties and informed her that she needed to re-train.
Starbucks defended the case, claiming that they were in discussions about providing more workplace support but the Employment Tribunal upheld the claim. The panel made declarations that Starbucks had failed to make reasonable adjustments, had discriminated against her because of the effects of her condition and found she had been victimised by her employer. The Employment Tribunal even made a finding that Starbucks appear to have little or no knowledge or understanding of equality issues. This will be an ongoing issue for Starbucks to manage because Ms Kumulchew still works for them.
All cases depend upon their own particular fact. As the British Dyslexia Association has commented, this does not set any precedent. Once an individual has informed their employer that they are suffering from any recognised medical condition or symptoms which could afford them disabled status, the employer should take steps to inform themselves of the nature of the condition and how this may affect the employee in the workplace. The Employment Tribunal in this case must have concluded that Starbucks failed to do so because no adjustments were made and rather than engage with Ms Kumulchew. Starbucks accused her of falsifying documents. Starbucks now have to manage a difficult situation and pay compensation for injury to feelings and possibly even aggravated damages.
Not all claims of this nature succeed. We represented a franchise owner of an international food fast-food retailer, who employed an individual with disabled status because they suffer from colour blindness. Similar difficulties arose because of a colour coding system imposed by the brand owner. The retailer had no choice other than to use the systems provided, which was quite properly designed both to meet quality standards and avoid cross-contamination between raw and cooked food. Despite induction and further training, repeated difficulties arose with the employee complying with systems and reporting. This caused practical problems and gave rise to potential issues of health and safety. With a full and proper understanding of the condition however, the employer identified that there were no adjustments which could reasonably be made and terminated the individual’s employment. The Employment Tribunal claim was struck out on the grounds that it had no reasonable prospect of success.
In terms of risk management, the difference between these two cases involves the level of awareness on the part of the employer. Starbucks will implement proper systems for sound commercial and other reasons but how they treated Ms Kumulchew clearly fell short of the legal standard required. Conversely, with an awareness of the symptoms and how they impact upon the individual in the workplace the risks can be identified and effectively managed without too much difficulty. Employers should be slow to make assumptions or blame individuals who are not performing when they are aware that the individual is suffering from a recognised medical condition such as colour blindness or indeed dyslexia.
Ultimately, there will either be ways in which the situation can be properly and effectively managed in the workplace or they will not. If no adjustments can reasonably be made then it is quite possible to terminate the employment of an individual who is disabled without facing a successful claim for discrimination or indeed victimisation.
With little more than an awareness of the symptoms and how they affect the individual in workplace, employers will usually be in a position to identify which type of situation they are dealing with. There is no obligation to implement adjustments which are unreasonable and claims for discrimination arising from disability can be defended providing the employer demonstrates that dismissal is a proportionate means of achieving a legitimate aim. This type of claim also cannot succeed if the employer can demonstrate that they did not know and could not reasonably have been expected to know that the individual had a disability.
The British Dyslexia Society makes a good point. This case should be a salutary lesson to employers. Before taking action based upon assumptions, employers should take all proper steps to inform themselves of the condition and symptoms and how the condition affects the individual in the workplace. Providing they do so there is a means of managing all the risks. If they do not do so, they should not be surprised if they find themselves in the same position as Starbucks.