A former employee of Marks and Spencer (M&S) has been awarded over £50,000 in compensation after it was found that she had been unfairly made redundant in September 2020, following concerns about her performance which were linked to her dyslexia. She was successful in her claims for unfair dismissal and disability discrimination (including a failure to make reasonable adjustments).

The facts

The employee, who had worked for M&S for 22 years, was dyslexic which meant that she found reading and communicating via lengthy emails difficult and preferred to communicate using bullet points to avoid making mistakes. Her GP reported that she also had "difficulties with sentence comprehension", had "spelling skills in the low range" and required regular breaks after 15-20 minutes of reading, particularly when from a computer screen. She had informed her managers that she was dyslexic and had requested adjustments that might help improve her performance, such as asking her managers to highlight/underline the most important parts of emails over a certain length. The adjustments were sometimes used but not consistently enough to resolve the employee's difficulties.

Therefore, when the employee was scored as part of M&S's redundancy process, she was marked down for her "accuracy and attention to detail" which led to "extra review time" by her line managers. She was also marked down for her behaviour as her standard of work dropped when workloads were high. The Tribunal held that these kinds of errors were caused by her disability and had more than a minor influence on their decision to select her for redundancy. Her selection was therefore discriminatory and unfair - and M&S ought to have implemented reasonable adjustments by discounting any disability-related effects when scoring this employee against the redundancy selection criteria.

Key points

Employers should be aware that dyslexia, which affects around 20% of the population, can amount to a disability under s.6 Equality Act 2010. It can also impact people differently - so one employee's experience of dyslexia at work might not correlate with another's, and employers should be considering the needs of each employee on a case-by-case basis.

The Tribunal also highlighted that M&S should have sought advice from Occupational Health at the point of finding out about the employee's dyslexia to ensure that appropriate adjustments could be made for her at work. M&S also should have made reasonable adjustments to the redundancy process to ensure that the scoring did not negatively impact any employees suffering from dyslexia.

In addition, the Tribunal warned against using subjective scoring criteria in a redundancy selection process. M&S had scored employees on their "Leadership Skills", "Technical Skills" and "Behaviours" in an effort to keep things simple, but had not implemented clear narratives as to what was and was not covered by each criterion. In this case, this led to the employee being marked down for her "inaccuracies" and for "rushing" across all three criteria - which the Tribunal said was unfair.

Link to the full judgment here: https://www.gov.uk/employment-tribunal-decisions/ms-r-jandu-v-marks-and-spencer-plc-2200275-slash-2021

Employment judge Holly Stout said: “In this case, her manager allowed her perception that Ms Jandu was prone to ‘rushing’ and ‘inaccuracies’ to count against her. These were things caused by her disability.

“We therefore consider that M&S had come under a duty to make reasonable adjustments.

“The adjustment proposed by Ms Jandu is that M&S should have discounted any disability-related effects when assessing her against the redundancy selection criteria. [...] We agree that this would have been a reasonable adjustment.”

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