Redundancy and neurodiversity discrimination  

A new case highlights the importance of discounting the effects of employees’ disabilities when going through the redundancy selection process.

Ms Jandu was formerly employed by Marks and Spencer for 22 years and was diagnosed with dyslexia in 2009. Her employer was aware of her diagnosis and the impact that it had on her work, including taking longer to complete tasks as well as weaknesses in her working memory which affected her ability to concentrate, read and write. Management were aware of this and she felt supported within the workplace by having adjustments made for her prior to the redundancy process. At no point were any performance related issues raised with her and her manager deemed her to be one of the high performers within the team despite the impact her dyslexia had on her work.

In July 2020 Ms Jandu went through a redundancy process at M&S and was scored against redundancy selection criteria which considered her leadership and communication skills. When scoring Ms Jandu, she was marked down on areas of her performance which were linked to her dyslexia, with management suggesting that her low scores were due to her emails appearing rushed, failing to adapt her tone in written communication and spelling errors. As a result Ms Jandu was made redundant and on appealing her employer’s decision, Ms Jandu raised concerns about her dyslexia, which she felt led to her dismissal. The Employment Tribunal found that M&S had failed to make reasonable adjustments when going through the selection process for redundancy and found that they, in making adjustments, should have discounted any disability-related effects when assessing her against the redundancy selection criteria.

Ms Jandu was successful in her disability discrimination claim and was awarded £50,000. 

It is estimated that around 15% – 20% of the workforce are neurodivergent which includes associated conditions such as ADHD, autism, dyslexia, dyspraxia and Tourette syndrome. It is important that employers understand how neurodivergent employees are affected by their condition, particularly around the effects it has on their brain functioning and ensure that reasonable adjustments are made accordingly. Employers should discount the effects of employees’ disabilities when going through the redundancy selection process and still be able to retain the best talent by ensuring that they go through a fair and consistent process which does not discriminate against disabled individuals.

Where there are performance related issues within the workplace, employers should raise these promptly and seek to address these properly and if need be, ensure reasonable adjustments are made for those whose performance is impacted due to their disability.

It is imperative that employers understand that neurodivergent individuals are impacted differently and their condition can take many forms; employers should be careful to not treat all neurodivergent individuals the same.

When going through a redundancy exercise, employers should ensure robust procedures are in place in terms of how to approach the redundancy exercise, go through a fair and consistent selection process and provide clear reasons for the outcome reached.

If you require further guidance or would like further legal advice, call our multi-award-winning Employment team on 0333 323 5292.

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