Mrs Joan Hutchinson v Asda Stores Limited — 2021

The claimant worked for the respondent from 2000 and, at the relevant time, was 73. The respondent accepted she was disabled by dementia. The tribunal found that before she shielded during the pandemic the respondent knew she was showing symptoms connected with a mental impairment, including forgetfulness, confusion and needing greater assistance, and ought reasonably to have known she was disabled.

The tribunal found that retirement was suggested to the claimant on more than one occasion. It concluded this would not have been raised with an employee who was not of retirement age in similar circumstances, and that the repeated mention of retirement amounted to direct age discrimination and age-related harassment. It also found disability-related harassment where another employee rummaged in the claimant's bag to assist her and where concerns about her symptoms were raised directly with her at the 10 July meeting.

The tribunal upheld discrimination arising from disability because the requests about retirement, the rummaging in the bag, and presentation of her symptoms at the meeting flowed from signs of mental impairment affecting her work, and the respondent had not shown the treatment was justified. The reasonable adjustments complaint was dismissed because the tribunal was not satisfied the pleaded arrangements caused the asserted substantial disadvantage or that the proposed adjustments were reasonable.

The tribunal found the same conduct breached the implied term of trust and confidence. The claimant resigned after the grievance outcome and was constructively dismissed; that dismissal was unfair. On Polkey, the tribunal found it likely that, had she remained employed, she would more than likely have been fairly dismissed by the end of 2020 for incapacity because of deterioration in her condition.