Patrick Tomison (counsel) For the v Respondent — 2022

Ms Jandu worked for Marks and Spencer as a Layout Planner from 17 March 2013 until her dismissal with effect from 31 October 2020 in a redundancy exercise carried out during the pandemic. The tribunal found that she had dyslexia at all material times, that Miss Gaskell knew this when the redundancy process began, and that the claimant told Miss Gaskell and later Ms Waller that writing emails took her a long time, that she checked and rechecked them, and that she sometimes needed help.

The tribunal held that the redundancy scoring exercise picked up disability-related features of the claimant's work, including mistakes or errors, slower completion, emails that appeared rushed or lacked clarity, difficulty balancing a lot of work, extra review time, and the tone of her communications. It found those matters arose in consequence of disability and that selecting her for redundancy because of them contravened ss 15 and 39 of the Equality Act 2010. It also held that the requirement to score her against the three redundancy criteria put her at a substantial disadvantage and that the reasonable adjustment would have been to discount disability-related effects when assessing her.

Victimisation was dismissed. Although the claimant made protected acts from 2 September 2020 onwards, the tribunal found that the handling of the consultation, appeal and complaint letters was not because she had raised those complaints; instead, the failings were explained by Miss Gaskell's view of the process, poor investigation, inexperience and lack of attention to written material. The tribunal therefore did not find that the protected acts were a material reason for the alleged detriments.

The unfair dismissal claim was upheld. Applying s.98 ERA 1996 and the redundancy principles in Williams v Compair Maxam, the tribunal found the selection process unfair because the criteria were highly subjective, disability-related matters were counted against the claimant across all three criteria, Ms Waller did not share all of Miss Gaskell's material with the claimant, and the respondent did not seek Occupational Health advice. The tribunal further found, on the evidence before it, that if the disability-related elements had been discounted the claimant would have scored 4 for Technical Skills, would have remained employed, and would not have been dismissed. Age discrimination, race discrimination and the part-time worker status claim were withdrawn before the hearing and were formally dismissed in the judgment. Remedy was not determined in this liability judgment; a remedy hearing was listed for 9 and 10 November 2022.