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75-year-old woman wins age discrimination case against Asda

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Hutchinson v Asda Stores Joan Hutchinson was employed as a shop floor assistant within the George clothing department working 25.3 hours a week. She enjoyed her role and was well liked by her colleagues. Her responsibilities included stripping deliveries, merchandising on the shop floor, following planograms for new modules, ticketing sale, tidying and sizing the department and delivering customer service.

Sadly, her son, Chris Hutchinson, noticed that his mother was exhibiting symptoms of dementia. In the summer of 2019, he observed that her driving was impaired and that on one occasion she went the wrong way around a roundabout. She ultimately gave up driving in March of 2020 and gave Mr Hutchinson her car.

Mrs Hutchinson began to travel by bus to work. Having walked to work after being unable to find the bus stop, Mrs Hutchinson accepted that she was getting worse. Staff at her branch in Deeside, North Wales, noticed her getting confused and she was jittery when trying to hang up returned items in the George clothing department.

The tribunal at Cardiff Magistrates’ Court noted that she would probably have been dismissed fairly had she not resigned after a discussion with her boss Stacey Weston-Laing. But the panel upheld her claims for age and disability discrimination and constructive dismissal, on the grounds that she was asked about retirement.

The tribunal heard that while Ms Hutchinson was shielding in 2020, Ms Weston-Laing went to her home to bring her shopping. But during her time away, the boss also brought up retirement several times, the panel found. Employment judge Alison Frazer said: ‘It made Ms Hutchinson feel she was being pushed out or that Asda felt she was too old to be there.’

On her return to work, a colleague looked in her bag when she could not find her keys and bus pass, which ‘violated her dignity’. Ms Hutchinson, now 75, was asked to speak to the health department but quit instead.

The employment judge said it was incumbent on Asda, prior to her return to work from lockdown, to investigate her symptoms via a referral to occupational health. The risk assessment that was carried out was based to a large degree of the claimant self-reporting and it concerned risks relating to Covid-19. “The claimant was, we find, constructively dismissed on the basis that the conduct (which we found amounted to age and disability-related harassment, direct age discrimination and discrimination arising from disability) breached the implied term of trust and confidence.”

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