A recent case involving Asda highlights the challenges for employers when faced with an older worker beginning to exhibit the first signs of dementia. This particular case involved an employee who was 73 years old. She had worked for 20 years in a particular store. Her family had spotted the first symptoms of dementia 2 years before she was diagnosed with mild cognitive impairment but Asda did not know of this. Colleagues had become concerned that at times the employee appeared confused, would forget things and lose keys and the employer attempted to get the employee to occupational health. The employee refused that input and also refused to allow her employer to liaise with her family. During her Tribunal case it was alleged that a manager suggested retirement.

The employee then shielded due to her age during the first lockdown. It was during this time that she was diagnosed with mild mixed dementia. At the Tribunal, there were further allegations that during this period a manager twice asked the employee whether she wanted to retire, although the manager denied this.

The employee attended a return to work meeting with her son and he raised her being pressured to retire, asking the employer to ensure his mother would not be bullied or harassed. When the employee came back to work, she was observed to take longer to work stock, got flustered and confused about how she was going to get home. She was unable to find her keys and her bus pass in her bag, which led to a deputy store manager rummaging in her bag for them, which the employee later reported to her family as having upset her. The next day, management tried to have a discussion with her about what had happened and the employee became upset and aggressive, saying she didn’t need help and if she did she would ask for it. The employer tried to get her to occupational health and the employee gave the impression that she might have resigned before walking out and going off on the sick.

A grievance was raised but not upheld and a recommendation was that the employee attend occupational health.

The employee resigned claiming age and disability discrimination. Asda offered her the opportunity to reconsider but she didn’t take it.

The Tribunal found that the employee was constructively dismissed and the conduct amounted to age and disability related harassment, direct age discrimination and discrimination arising from a disability that breached the implied term of trust and confidence. The Tribunal understood that the suggestions of retirement on multiple occasions may have been said in a well-meaning way but were age related harassment. This clearly made the employee feel that she was being pushed out and was unwanted.

The rummaging in her bag was found to have violated her dignity – this was an act of disability related harassment because it was brought about by the memory impairment.

You shouldn’t discount this case as unusual because of the age of the employee – more and more older workers are present in the workforce these days and in any event, memory impairment can be diagnosed early on so assumptions about age and dementia cannot be made.

Whilst it can be very tempting for managers to try and manage problems with an employee who is older by mentioning retirement, they need to be trained to steer clear of retirement as a subject – you wouldn’t make such a comment to a 35 year old employee, so you shouldn’t make such a comment to an older worker as it just opens up the door to them claiming this kind of discrimination. That doesn’t mean a manager can’t discuss career plans. Conversations would need to happen across the board irrespective of the employee’s age though.

Instead, if an employee is beginning to exhibit signs of dementia or other cognitive impairment, the case should be dealt with as you would for any employee of any age. Asda had clearly tried to do the right thing in terms of getting the employee to occupational health but we don’t have enough detail about the lengths that they had gone to in that regard. It may be that they had steered away from explaining to the employee that their refusal to attend occupational health placed Asda in a difficult position of having to make decisions and judgements based on the only information that they had. It might have been that the employee was struggling to perform certain tasks. It was here that the focus should have been – what are the tasks the person is struggling with? What evidence is there that they are struggling?

With regards to the incident of searching the handbag, again the employee concerned was probably trying to be helpful but you need to operate on the basis that any searching of personal belonging or lockers needs to be done with consent and in accordance with any search policy that is in place. Any search would need to be justified and it is here that Asda probably struggled. The manager could have offered to assist and if the employee refused to take it up then to respect that.

Too often we observe that in having to deal with situations in a business-like manner probably while juggling a million and one other things causes line managers forget to add the “human” aspect into communications. The best way I deal with this is to write what I want to write about something, make sure my key points are covered and then go back and add in a language of care and concern and support and wanting to help the person but remember any judge is going to be looking at all of those things, judging whether or not you have done enough. I suspect the communications in this case were devoid of that human touch.

Refreshing Law
20 January 2022