Skip to main content
IOSH Magazine: Safety, Health and Wellbeing in the world of work - return to the homepage IOSH Magaazine logo
  • Visit IOSH Magazine on Facebook
  • Visit @ioshmagazine on Twitter
  • Visit IOSH Magazine on LinkedIn
Non-verbal communication
How to build trust
March/April 2023 issue

Main navigation

  • Home
    • Browse previous issues
    • Member accolades
    • Member tributes
  • Health
    • Mental health and wellbeing
      • Bullying
      • Drugs and alcohol
      • Mental health
      • Stress
      • Wellbeing
    • Musculoskeletal disorders (MSDs)
      • Ergonomics
      • Manual handling
      • Vibration
    • Occupational cancer
      • Asbestos
      • Hazardous substances
      • Radiation
  • Safety
    • Incident management
      • Chemicals
      • Electricity
      • Fire
      • First aid
      • Slips and trips
    • Non-health related fatalities
      • Road safety
      • Work at height
    • Risk management
      • Confined spaces
      • Disability
      • Legionella
      • Lifting operations
      • Lone workers
      • Noise
      • Personal protective equipment
      • Violence at work
      • Work equipment
      • Workplace transport
  • Management
    • Human factors
      • Accident reduction
      • Behavioural safety
      • Control of contractors
      • Migrant workers
      • Older workers
      • Reporting
      • Safe systems of work
      • Sickness absence
      • Young workers
    • Leadership and management
      • Employee involvement
      • Management systems
    • Management standards
      • ISO 45001
      • ISO 45003
    • Planning
      • Assurance
      • Compliance
      • Emergency planning
      • Insurance
    • Rehabilitation
      • Personal injury
      • Return to work
    • Strategy
      • Corporate governance
      • Performance/results
      • Regulation/enforcement
      • Reputation
    • Sustainability
      • Human capital and Vision Zero
  • Skills
    • Communication
    • Personal performance
      • Achieving Fellowship
      • Career development
      • Competencies
      • Personal development
      • Professional skills
      • Qualifications
    • Stakeholder management
    • Working with others
      • Leadership
      • Future Leaders
  • Jobs
  • Covid-19
  • Knowledge Bank
    • Back to basics
    • Book club
    • Infographics
    • Podcast
    • Reports
    • Webinars
    • Videos
  • Products & Services
  • Management
    • Human factors
      • Sickness absence
      • Accident reduction
      • Behavioural safety
      • Control of contractors
      • Migrant workers
      • Older workers
      • Reporting
      • Safe systems of work
      • Young workers
    • Leadership and management
      • Employee involvement
      • Leadership
      • Management systems
    • Management standards
      • ISO 45001
      • ISO 45003
    • Planning
      • Assurance
      • Compliance
      • Emergency planning
      • Insurance
    • Strategy
      • Corporate governance
      • Performance/results
      • Regulation/enforcement
      • Reputation
    • Sustainability
      • Human capital and Vision Zero
  • Health
    • COVID-19
    • Mental health and wellbeing
      • Bullying
      • Drugs and alcohol
      • Mental health
      • Stress
      • Wellbeing
    • Musculoskeletal disorders (MSDs)
      • Ergonomics
      • Manual handling
      • Vibration
    • Occupational cancer
      • Asbestos
      • Hazardous substances
      • Radiation
  • Safety
    • Incident management
      • Chemicals
      • Electricity
      • Fire
      • First aid
      • Slips and trips
    • Non-health related fatalities
      • Road safety
      • Work at height
    • Risk management
      • Confined spaces
      • Disability
      • Legionella
      • Lifting operations
      • Lone workers
      • Noise
      • Personal protective equipment
      • Violence at work
      • Work equipment
      • Workplace transport
  • Skills
    • Communication
    • Personal performance
      • Career development
      • Competencies
      • Personal development
      • Qualifications
      • Professional skills
      • Achieving Fellowship
    • Stakeholder management
    • Working with others
      • Leadership
      • Future Leaders
  • Transport and logistics
  • Third sector
  • Retail
  • Mining and quarrying
  • Rail
  • Rehabilitation
    • Personal injury
    • Return to work
  • Utilities
  • Manufacturing and engineering
  • Construction
  • Sector: IOSH Branch
    • Sector: Northern Ireland
    • Sector: Midland
    • Sector: Merseyside
    • Sector: Manchester and North West Districts
    • Sector: Ireland East
    • Sector: Ireland
    • Sector: Edinburgh
    • Sector: Desmond-South Munster
    • Sector: Qatar
    • Sector: Oman
    • Singapore
    • Sector: South Coast
    • Sector: South Wales
    • Sector: Thames Valley
    • Sector: Tyne and Wear
    • Sector: UAE
    • Sector: West of Scotland
    • Sector: Yorkshire
  • Healthcare
  • Sector: Fire
  • Sector: Financial/general services
  • Sector: Energy
  • Education
  • Sector: Communications and media
  • Chemicals
  • Sector: Central government
  • Catering and leisure
  • Agriculture and forestry
  • Sector: Local government
  • Sector: IOSH Group
    • Sector: Financial Services
    • Sector: Sports Grounds and Events
    • Rural industries
    • Sector: railway
    • Public Services
    • Sector: Offshore
    • Sector: Hazardous Industries
    • Sector: Food and Drink
    • Sector: Fire Risk Management
    • Education
    • Construction
    • Sector: Aviation and Aerospace
Quick links:
  • Home
  • Categories
  • News
Older workers
Disability
Retail

Dementia sufferer wins dismissal claim after Asda fails to involve OH soon enough

Open-access content Tuesday 25th January 2022
From the archive:  Just so you know, this article is more than 1 year old.
Authors
Jocelyn Dorrell
Web-Asda-iStock-954275574.jpg

A 73-year-old woman with dementia has won her claim for constructive unfair dismissal against supermarket giant Asda, after she was asked more than once if she wanted to retire and subjected to treatment that violated her dignity.

Upholding Joan Hutchinson’s claim for age and disability-related harassment and discrimination at a tribunal in Cardiff, Judge A Frazer said Asda “ought to have referred the claimant to occupational health prior to her return” to work after lockdown. 

Joan had been employed at the Queensferry Asda store since September 2000. The tribunal heard that in 2017, Joan’s son, Chris, had noticed his mother exhibiting some symptoms of dementia. In October 2019, she was diagnosed with mild cognitive impairment, but Asda was not aware of this.

In early March 2020, the tribunal heard, Stacey Weston-Laing – section leader in the clothing department where Joan worked – and a number of other colleagues became 'concerned about the claimant appearing confused, losing keys and forgetting things'. Angela Green, people trading manager, suggested she arrange an occupational health appointment but Joan didn’t want one. During the conversation, the option of retirement arose for the first time.

On 19 March 2020, Joan began shielding, as she was deemed vulnerable due to her age. On 2 July, she was diagnosed with mild mixed dementia.

While she was shielding, Stacey delivered groceries to Joan and contacted her to check on her wellbeing. Giving evidence to the tribunal on her mother’s behalf, Joan’s daughter said that during one conversation, Weston-Laing raised the possibility of retirement. Joan said she did not want to retire and was upset by the suggestion, feeling that she was unwanted at Asda.

'This case demonstrates the need to ensure managers are fully trained around these issues. Employers need to be more acutely aware in relation to older employees exhibiting such symptoms'

On 26 June, Joan attended a meeting to discuss arrangements for going back to the store. Joan’s daughter, who attended the meeting in support of her mother, told the manager in attendance that Stacey had asked her mother if she wanted to retire. Joan’s daughter asked that her mother not be harassed when she returned to work.

Joan went back to work on 9 July. During a return-to-work interview with Stacey, Joan initially refused but later agreed to have a consultation with occupational health. 

During the day, Stacey observed that Joan was at times 'flustered' and 'jittery'. Before she left to go home, Joan had difficulty finding her keys so the deputy store manager “rummaged” in her bag to find them. The tribunal heard that after her shift ended Joan couldn’t remember if her daughter was picking her up or she was getting the bus.

The next day, Joan attended a meeting with Stacey and the general store manager to discuss the lost keys and other events from the pervious day. Stacey asked if Joan would see occupational health, but she became upset and walked out. She was signed off sick.

On 23 July Joan’s son raised a grievance on his mother’s behalf. Following a hearing on 27 August and an investigation, the grievance was dismissed on 22 September. An occupational health appointment was made for 28 September, 'so that her return to work could be properly managed”, but on 25 September Chris Hutchinson wrote a letter of resignation on his mother’s behalf. The letter cited age and disability discrimination. Her employment ended on 6 October.

In his conclusions, the judge decided that despite Joan declining occupational health support, Asda 'ought reasonably to have known that the claimant was disabled' and that due to her forgetfulness and confusion, Asda was 'on notice that the claimant had symptoms of a mental impairment prior to the lockdown period.

'We find that at the very least, it was incumbent on the respondent prior to her return to work from lockdown to investigate her symptoms via a referral to occupational health.'

On the incident in which the deputy store manager searched Joan's bag for her keys, the judge concluded that while this was done with the 'best intentions', it left Joan feeling upset and could have been done in a way that 'preserved her dignity'. 

'The conduct was unwanted by the claimant and it related to her condition as it was brought about by her memory impairment,' the judge decided. 'It had the effect of violating her dignity… [It] amounted to disability-related harassment.'

The repeated mentioning of retirement was direct age discrimination, the judge concluded, and also amounted to age-related harassment because it was raised more than once.

'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.'

The judge rejected Hutchinson’s claim against Asda for a failure to make reasonable adjustments.

Paul Grindley, partner at Winston Solicitors, told IOSH magazine: 'I think this case demonstrates the need to ensure managers are fully trained around these issues. Employers need to be more acutely aware in relation to older employees exhibiting such symptoms.

'Even just a single, well-meaning comment or action can be held to amount to discrimination, and asking an older employee if they would like to retire is always going to carry a risk. 

'Employers can ask all employees what their future work plans and aspirations are, but should be careful to avoid targeting – or being seen to target – older workers.'

The full judgment is available here.

A recent case saw an employee claim unfair dismissal after he refused to return to work over safety concerns of his workplace and COVID-19.

And a lorry driver who was sacked after refusing to wear a facemask inside his cab on a client’s site was fairly dismissed, a judge ruled.

Image credit | iStock
 

You may also be interested in...

web_Downing-street-sign_credit_iStock-458093489.png

 Appeal brought against employer for disability discrimination case

Friday 4th February 2022
The appellant in Judd V Cabinet Office [2021], Victoria Judd, appealed against the rejection of her claims for disability discrimination after she was refused a secondment opportunity in Montenegro on grounds of risk to her health.
Open-access content
web_hand-sanitiser_credit_iStock-1213606151

 ‘Fear of Covid’ not a belief, says judge – as he rejects discrimination claim

Monday 10th January 2022
An employee who refused to return to work because of Covid safety concerns has lost her discrimination claim after a tribunal decided her fear of catching the virus did not constitute a belief as defined by the Equality Act.
Open-access content
web_Evening-traffic-on-M25_credit_iStock-1208218035.png

 CPS rejects corporate manslaughter charge against Highways England over smart motorway death

Friday 11th February 2022
Highways England will not face a corporate manslaughter charge over the death of a 62-year-old woman on a smart motorway because the organisation “did not owe road users a ‘relevant duty of care’” under the Corporate Manslaughter Act 2007, South Yorkshire Police have announced.
Open-access content
Web-Handcuffed-iStock-802236202.jpg

 South Korean business owners and managers face tougher OSH penalties

Tuesday 25th January 2022
Business owners and managers in South Korea face significantly tougher penalties for serious accidents or fatalities when new enforcement rules are introduced this week.
Open-access content
iStock-1198209187.jpg

 Edinburgh nursery fined £800k over 10-month-old boy’s fatal choke

Friday 28th January 2022
An Edinburgh nursery that failed to provide its employees with suitable instruction and supervision has been fined £800,000 after a 10-month-old boy in its care died after a choking incident.
Open-access content
web_young-engineer-in-factory_credit_iStock-1038364390.png

 Employers must provide same level of protection to all workers under amended PPE regs

Friday 21st January 2022
Employers need to ensure they are ready to provide the same level of protection to workers who carry out casual work as employees who have a contract of employment when amended personal protective equipment (PPE) regulations come into force on 6 April (https://www.hse.gov.uk/ppe/index.htm).
Open-access content

Latest from News

jfc

 IOSH launches new five-year strategy

Tuesday 21st March 2023
IOSH launches its new five-year strategy this spring. It will build and act on the reshaped purpose and ambition gained during WORK 2022, which ran from 2017 to 2022.
Open-access content
web_Cranes-on-construction-site_credit_iStock-1352083784.jpg

 Risk & Compliance software provider collaborates with HSE and Costain to improve risk management on worksites

Friday 17th March 2023
A Belfast-based Risk & Compliance software provider has been collaborating with the Health and Safety Executive (HSE) and construction giant Costain as part of an ongoing project to unlock artificial intelligence’s (AI) potential in improving the management of risks on worksites.
Open-access content
web_Jeremy-hunt-holding-dispatch-box_credit_Fred-Duval_shutterstock_2275701011.png

 Spring budget and occupational health

Friday 17th March 2023
Richard Jones CFIOSH, comments on the occupational health aspects of the Chancellor Jeremy Hunt's first budget statement.
Open-access content

Latest from Retail

web_hordes-shopping-on-black-friday_credit_rblfmr_shutterstock_1255683580.png

 Black Friday: a safety nightmare?

Friday 25th November 2022
One of the most anticipated and busiest shopping events of the calendar year is upon us – but how can retailers keep customers and staff safe? We look at how they can mitigate the risks.
Open-access content
web_Crowded-shopping-center_CREDIT_Canadapanda_shutterstock_165419309.png

 Black Friday: a retailer's perspective

Friday 25th November 2022
Lee Bennett is a health and safety manager at British Land, which owns more than 50 shopping centres and retail parks across the UK. He tells us how he has bene planning for one of the busiest shopping days of the year.
Open-access content
web_Topshop-store_credit_Champiofoto_shutterstock_409317943.png

 Keeping retail safe for all: investigating Topshop death

Thursday 17th November 2022
As Topshop and Arcadia are fined £1m over boy's death, Katie Heath, Principal Environmental Health Officer at Reading Borough Council, describes how systemic failings in health and safety can lead to tragedy.
Open-access content

Latest from Disability

web_British-police-guarding-buckingham-palace_credit_iStock-116060768.jpg

 Disabled trainee police officer wins discrimination claim against Met

Wednesday 8th February 2023
A probationer police constable has won a disability discrimination case against the Metropolitan Police Service (MPS) after being dismissed in July 2021. He had been on probation for five years.
Open-access content
ioj

 Disabled employee dismissed for suitable work chair request was a victim of disability discrimination, tribunal rules

Thursday 12th January 2023
A remote tribunal has ruled unanimously that an employee dismissed from his position as an employability adviser has been successful in his claims of disability discrimination
Open-access content
gv

 Call to create more neurodiverse workforces

Wednesday 4th January 2023
A chartered psychologist is calling on employers to consider neurodivergent employees when planning where staff should work so that these individuals can thrive in the workplace.
Open-access content

Latest from Older workers

web_remote-learning_credit_iStock-476226644

 How remote work can keep older employees in the labour force for longer

Tuesday 28th September 2021
IOSH magazine spoke to Naomi Humber, head of mental wellbeing at Bupa UK, to ask her about the different ways OSH practitioners can support the wellbeing of older workers.
Open-access content
Wood recycler fined £910 over delivery driver's fatal vehicle strike.jpg

 Wood recycler fined £910k over delivery driver’s fatal vehicle strike

Friday 30th July 2021
A wood recycling plant operator has been fined £910,000 after a self-employed lorry driver was struck by a wheeled shovel loader and died.
Open-access content
web--p52-55-Aged-workforce-Elderly-nurse-during-two-minute-silence--Getty--1221585315.jpg

 A race against time

Monday 18th May 2020
Whether it’s more pressing concerns, prejudice or a lack of foresight, too few firms are taking the ageing of the workforce seriously. Fortunately, it’s an area where OSH professionals can pick up the baton.
Open-access content

Latest from Jocelyn Dorrell

web_women-analysing-document_credit_iStock-1018188310.png

 Treat menopause like maternity and pilot ‘menopause leave’, MPs urge government

Friday 12th August 2022
Menopause should be a protected characteristic and employers should have a duty to make reasonable adjustments for menopausal employees to stem the ‘steady haemorrhage of talented women from our workforce’, according to a group of MPs.
Open-access content
web_Businessman-thinking_credit_iStock-1263397855.png

 Singapore eyes directors’ duties’ ACoP to tackle safety culture after spike in fatalities

Monday 8th August 2022
A senior government minister in Singapore has issued a warning to company directors that they face prosecution for health and safety failures, as the government considers a new Approved Code of Practice (ACoP) on directors’ duties
Open-access content
web_Gold-cross-on-the-floor_CREDIT_iStock-185274366.jpg

 Worker unfairly dismissed after ‘cursory’ risk assessment banned crucifix necklace

Friday 22nd July 2022
A factory worker who was sacked after refusing to remove his crucifix necklace has won his unfair dismissal case on appeal after a judge agreed the employer’s risk assessment had been 'cursory'.
Open-access content
Share
  • Twitter
  • Facebook
  • Linked in
  • Mail
  • Print

Latest Jobs

Health Safety and Wellbeing Advisor 

London (Greater)
Competitive Salary
Reference
5452969

HSE Manger

Washington
£45000 - £50000 per annum
Reference
5452967

SHEQ Systems Advisor

Bexleyheath
£25000 - £45000 per annum
Reference
5452963
See all jobs »

Sign up for regular e-alerts

Receive the latest news and features, free to your inbox

Sign up

Subscribe to IOSH magazine

Receive the print edition straight to your door

Subscribe
IOSH Covers
​
FOLLOW US
Twitter
LinkedIn
YouTube
CONTACT US
Contact us
Tel +44 (0)20 7880 6200
​

IOSH

About IOSH
Become a member
IOSH Events
MyIOSH

Information

Privacy Policy
Terms & Conditions
Cookie Policy

Get in touch

Contact us
Advertise with us
Subscribe to IOSH magazine
Write for IOSH magazine

IOSH Magazine

Health
Safety
Management
Skills
IOSH Jobs

© 2023 IOSH • IOSH is not responsible for the content of external sites

ioshmagazine.com and IOSH Magazine are published by Redactive Media Group. All rights reserved. Reproduction of any part is not allowed without written permission.

Redactive Media Group Ltd, 71-75 Shelton Street, London WC2H 9JQ