Ms R Jandu v Marks and Spencer plc: 2200275/2021
| Judgment Date | 21 April 2022 |
| Date | 21 April 2022 |
| Citation | 2200275/2021 |
| Published date | 05 May 2022 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 2200275/2021
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EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Ms R Jandu Marks and Spencer Plc
Heard at: London Central On: 8, 9, 10, 11 and (in
chambers) on 14 March 2022
Before: Employment Judge H Stout
Tribunal Member S Pearlman
Tribunal Member N Sandler
Representations
For the claimant: Patrick Tomison (counsel)
For the respondent: Hitesh Dhorajiwala (counsel)
JUDGMENT
The unanimous judgment of the Tribunal is that:
a. The Respondent contravened ss 15 and 39 of the EA 2010 by
discriminating against the Claimant because of something arising in
consequence of her disability.
b. The Respondent contravened ss 20 and 39 of the EA 2010 by failing
to comply with its duty to make reasonable adjustments.
c. The Respondent did not victimise the Claimant in contravention of ss
27 and 39 of the EA 2010.
d. The Claimant’s complaint of unfair dismissal under Part X of the ERA
1996 is well-founded.
e. If the Respondent had not acted unlawfully in the above respects,
the Claimant would not have been dismissed.
f. The Claimant’s claims of age discrimination, race discrimination and
discrimination because of the Claimant’s part-time worker status are
dismissed upon withdrawal.
Case Number: 2200275/2021
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REASONS
1. Ms Jandu (the Claimant) was employed by Marks and Spencer Plc (the
Respondent) from 17 March 2013 until she was dismissed with effect from 31
October 2020. The Respondent says that the reason for dismissal was
redundancy. The Claimant in these proceedings brings claims for unfair
dismissal under the Employment Rights Act 1996 (ERA 1996) and for
disability discrimination (including failure to make reasonable adjustments)
and victimisation under the Equality Act 2010 (EA 2010).
The type of hearing
2. This has been a remote electronic hearing under Rule 46.
3. The public was invited to observe via a notice on Courtserve.net. No
members of the public joined, but there were some observers connected to
the parties. No issues arose with the internet connection/electronic room.
4. The participants were told that it is an offence to record the proceedings. The
participants who gave evidence confirmed that when giving evidence they
were not assisted by another party off camera.
The issues
5. The issues to be determined were agreed and recorded in a Case
Management Order by Employment Judge Khan on 11 August 2021. Shortly
before this hearing, the Claimant withdrew claims for age and race
discrimination and discrimination because of the Claimant’s part-time worker
status. Those claims are formally dismissed as part of this judgment. The
Claimant also refined the list of issues in certain other respects, so that the
agreed list of issues at the start of this hearing was as follows:
(1) Unfair dismissal (sections 95 and 98 of the Employment Rights Act 1996
(“ERA 1996”)
1.1 What was the reason or principal reason for the claimant’s
dismissal? The respondent says the reason was redundancy.
1.2 If the reason for dismissal was redundancy, did the respondent act
reasonably in all the circumstances in treating that as a sufficient
reason to dismiss the claimant. This may involve consideration of
whether:
a. The respondent adequately warned and consulted the
claimant.
b. The respondent adopted a reasonable selection decision,
including its approach to a selection pool and the selection
criteria.
c. The respondent took reasonable steps to find the claimant
suitable alternative employment.
Case Number: 2200275/2021
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d. Dismissal was within the range of reasonable responses.
(2) Disability (section 6 & Schedule 1 of the Equality Act 2010 (“EA 2010”)
2.1 Was the claimant a disabled person within the meaning of section 6
EA 2010 at all relevant times because of dyslexia at all relevant
times?
2.2 If so, did the respondent know or could it reasonably have been
expected to know that the claimant was a disabled person at all
relevant times?
(3) Discrimination arising in consequence (section 15 EQA)
3.1 Did the following things arise in consequence of the claimant’s
disability:
a. Making mistakes / errors in her work.
b. Not completing work accurately and on time.
c. Communication feeling rushed and not providing more
clarity.
d. Struggling with balancing a lot of work.
e. Accuracy and attention to detail requiring extra review time
from management.
f. Communication tone.
3.2 If so, did the respondent dismiss the claimant because of any of
those things?
3.3 If so, can the respondent show that dismissing the claimant was a
proportionate means of achieving a legitimate aim? The respondent
relies on the following aims:
a. The need to retain the best talent by selecting those
employees who were best suited and most capable to
perform the remaining roles following the redundancy
exercise.
b. The need to apply fair and consistent standards and metrics
to all employees within the selection pool (subject to any
reasonable adjustments).
(4) Reasonable adjustments (sections 20 & 21 EA 2010)
4.1 Did the respondent have the following PCPs?
a. A requirement for her performance to be marked against
three selection criteria for the redundancy exercise.
4.2 Did any such PCP put the claimant at a substantial disadvantage in
compared to someone without the claimant’s disability in that she
was marked down in the redundancy scoring process (on / around
15 September 2020) which resulted in dismissal?
4.3 Did the respondent know or could it reasonably have been
expected to know that the claimant was likely to be placed at this
disadvantage?
4.4 Did the respondent fail to take such steps as were reasonable to
avoid this disadvantage?
a. Discounting any disability-related effects when assessing the
claimant against the redundancy selection criteria:
Leadership Skills, Technical Skills and Behaviours.
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