Encouraged retirement amounts to discrimination

The Employment Tribunal (ET) found an older employee with dementia was constructively dismissed, discriminated against and humiliated because of her condition, when she was repeatedly asked if she wanted to retire and was not offered an occupational health referral prior to her return to work after shielding.

In this case, the claimant had worked in an Asda store for 20 years. She first began displaying signs of dementia in 2017, and by 2019 her deterioration was noticed by her colleagues. By 2020, the claimant had stopped driving to work and instead started getting the bus; her doctor had arranged a memory test for her. The claimant did not disclose that she was suffering from dementia to anyone at Asda.

On one occasion, she walked to work after failing to find the bus stop. It was suggested by a store manager that she arrange an occupational health appointment, or contact the claimant’s daughter, but the claimant refused both of these actions. The same store manager also discussed retirement with the claimant at this time.

As a result of government advice that the over 70s should shield, the claimant began 12 weeks of isolation in March 2020. Asda were supportive of her during this time, however as a result of another manager asking her if she wanted to retire a number of times, the claimant began to feel unwanted by Asda. On her return from shielding, issues as a result of her dementia continued, and concerns over her performance were noted. This ultimately lead to a meeting between the claimant and her manager, where she was asked if there was any support that could be given, or if she wanted to speak to occupational health. As a result of this conversation, the claimant left the store and was signed off sick, never to return to work.

The tribunal was critical of the approach taken by Asda in approaching this matter. Whilst it was accepted the situation was made more difficult by the claimant being reluctant to accept assistance, it should have been obvious she was disabled and therefore in need of a more sensitive approach. The previous conversations around retirement meant that when occupational health was suggested on the claimant's return to work, it created an unwanted and humiliating environment for the claimant, which was related to her disability as the concerns involved the symptoms of her condition.

It was held that it was incumbent upon Asda to have investigated the symptoms via occupational health prior to her return to work, rather than the risk assessment that was carried out, which was largely self-reported and found to be a ‘box-ticking exercise’. Had they done so, it would not have been necessary for her manager to approach her directly to speak about her symptoms and make her feel unwanted. Even though it was found the comments were well meaning, and that the claimant’s manager was helpful and supportive of her, the situation as a whole created a hostile environment that led to discrimination, disability-related harassment and was a breach of the implied term of trust and confidence.

This judgment is an important reminder for employers that they must approach situations such as this delicately. It will almost always be risky to ask about an individual's plans to retire, as it can lead to them feeling pushed out of the business. Instead, the assumption should be that the employee will continue until they are ready to go, and therefore they should be asked, as no doubt younger colleagues are, what their future work plans and aspirations are, and what the organisation can do to help them develop.

Having a retirement policy that employees can trigger themselves is one-way employers can enable employees to feel comfortable in raising retirement within a defined framework. This can manage their expectations of the conversation and make it explicitly clear that there is no pressure for employees to make such a significant decision regarding their working life.

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