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Employment Law Case Update: How to support an employee with dementia

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Our Employment Law team today reviews the case of Hutchinson v Asda Stores Ltd 2021 in which the Employment Tribunal (ET) considered the genuinely delicate question of whether an employee suffering with dementia was unfairly dismissed and subject to age and disability discrimination.

Mrs Hutchinson, 75, had been an employee of the company since 2000. In 2017, her son noticed that she began to show signs of dementia. In late 2019, she was then admitted to hospital for an unrelated condition. Upon her return to work, her colleagues noticed she would often lose and forget things. On one occasion she had to walk to work after forgetting where the bus stop was.

She was given the opportunity to speak to the company’s Occupational Health department or have her manager speak to her family. Mrs Hutchinson refused both options.

During lockdown, Mrs Hutchinson was forced to isolate, owing to her clinically vulnerable age. Her manager delivered shopping to her while she was shielding and contacted her to check on her wellbeing.

The ET found that during conversations with her manager, Mrs Hutchinson was asked if she wanted to retire, something which upset her and made her feel unwanted.

When Mrs Hutchinson returned to work in July 2020, her manager became concerned about her performance and had to remind her about social distancing. Mrs Hutchinson was also confused about whether she would take the bus home or whether her daughter would pick her up. Before leaving, Mrs Hutchinson could not find her keys or her bus pass. Another employee rummaged through her bag to find them for her. The ET concluded that, despite this being done with the best intentions and despite Mrs Hutchinson being initially grateful, her dignity had been violated - which constituted disability-related harassment.

Her manager and another colleague held a meeting to determine if there was anything the store could do to support Mrs Hutchinson. This caused her to become upset and aggressive saying she did not need help and if she did she would ask for it. Her manager asked if she would speak to Occupational Health which caused Mrs Hutchinson to say “I can’t do my job, I will leave”. She then left the meeting and did not return to work, having been signed off sick.

The ET was sympathetic to the position the company found itself in as Mrs Hutchinson did not want any fuss and refused a referral to Occupational Health. However, it found that the company ought reasonably to have known that Mrs Hutchinson was disabled.

The judgment read: “had the [company] referred [Mrs Hutchinson] to Occupational Health prior to her return to work there would not have been a need for her line managers to talk to her directly about her symptoms, even though this was out of genuine concern.”

The company had carried out a risk assessment on Mrs Hutchinson’s return to work after lockdown, however, this was largely a tick box exercise and was based on self-reporting and risks related to Covid-19, meaning Mrs Hutchinson’s conditions would have likely been missed.

Although Mrs Hutchison had not directly divulged she was suffering from dementia, the ET held that the company had ‘constructive knowledge of her disability given it was aware of her symptoms of forgetfulness, inability to concentrate and confusion’. The ET held that raising questions around retirement amounted to disability and age discrimination.

The case reminds employers to act cautiously in relation to older employees who are showing signs of ill-health.

A preferable way to understand an employee’s plans around retirement is to ask what their future work plans and aspirations are. Employers can also implement a retirement policy to set out a framework for employees to feel comfortable in raising discussions about their retirement plans.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.