Tribunal finds ‘no knowledge of equality issues’

Starbucks became the subject of media attention recently when one of its employees, Meseret Kumulchew, won her case for disability discrimination. Her claim arose from her employer’s failure to make reasonable adjustments for her dyslexia. She also won a claim for victimisation.

Disability under the Equality Act 2010 is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. When an employer is aware of an employee’s disability, and there are ‘provisions, criteria or practices’ (PCPs) that put that disabled employee at a substantial disadvantage in comparison with those who are not disabled, the employer must take reasonable steps to avoid the disadvantage. It is their responsibility to assess the need for, and nature of, any adjustments irrespective of whether the employee requests them.

While dyslexia is not automatically deemed a disability, the prevailing symptoms and their severity do need to be assessed. Where medical conditions are identified, tribunals expect employers, particularly larger ones, to obtain guidance from occupational health professionals (which may also include suggestions from organisations like the British Dyslexic Association) on both the content and performance of an employee’s duties.

In this case, the high street coffee retailer carried out an investigation of data recorded by Kumulchew when she was checking equipment temperatures at the store where she was a supervisor. The investigation found her explanation implausible and led to accusations that she had made up the data. Internal disciplinary proceedings followed.

Starbucks had promoted the importance of diversity and inclusion. Its diversity statement said it was “dedicated to creating a workplace that values and respects people from diverse backgrounds, and enables its employees to do their best work” and its global human rights statement emphasised inclusion and equality, and specifically required employees to eliminate discriminatory practices personally. But policy commitments to a diverse workforce are insufficient. Tribunals will examine what happens in practice.

The employment tribunal accepted that the mistakes Kumulchew made were due to her difficulties with reading, writing and telling the time, and that she had done enough to make her employer aware of her dyslexia and its impact on her. This would require an employer to make an assessment of her suitability to read, check and record data under time pressure in a busy, noisy environment but apparently she was in effect demoted and told to retrain. These are clearly detriments, and presumably the tribunal accepted these instructions were given even though the employee had complained about a failure to make reasonable adjustments.

The tribunal accepted there were alternative ways for the tasks to be met, either by the employee working with colleagues or by delegating the tasks, and that it would have been reasonable for these to be made.

The publicity surrounding the case highlights the challenges faced by a large employer in the public eye, particularly if a tribunal makes negative observations about its equality practices or awareness.

Once the issue of dyslexia was raised in the disciplinary proceedings as an explanation for Kumulchew’s errors, the employer could have responded by referring her for an occupational health assessment on whether her symptoms amounted to a disability and to look at reasonable adjustments.

Starbucks will be concerned by the tribunal finding that Kumulchew was victimised. Again, the availability of occupational health advice before retraining instructions were contemplated would probably have helped the decision-makers.

Perhaps most surprising was the tribunal’s observation that there appeared to be little or no prevailing knowledge of equality issues. Although presumably directed at a small number of employees who made mistakes during the disciplinary process, those comments affect Starbucks’s wider reputation and make the resolution of this particular case more challenging.

There are some key lessons for larger employers from the case. They should:

  • provide appropriate equality training for staff, including periodic refreshers, so line managers get timely HR support to prevent matters escalating unnecessarily
  • document the training to confirm the employees’  participation and understanding
  • provide access to occupational health reporting if medical conditions are raised as explanations for conduct or performance in internal proceedings, even if an employer was unaware of the condition when starting an investigation 
  • pause internal proceedings to obtain further information promptly to help avoid positions becoming polarised and entrenched.
Robert Davies is an employment partner at CMS Cameron McKenna

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