Storm in a coffee cup: Starbucks loses dyslexia discrimination case
In a recently reported case, Starbucks was held to have fallen foul of the Equality Act in their treatment of a dyslexic employee.
In the case of Kumulchew v Starbucks, which was recently reported in the press, the coffee chain was held to have fallen foul of the Equality Act in their treatment of a dyslexic employee.
The Tribunal’s findings
Miss Kumulchew was employed by Starbucks as a shift supervisor. Her duties included recording the temperatures of in-store fridges and water containers at regular intervals.
Miss Kumulchew, who was known by her employer to have Dyslexia, was accused of falsifying the records. She was disciplined by the company, being awarded a final written warning which was later reduced to a ‘first warning’. However Miss Kumulchew contended that the erroneous records were simply a mistake and later told an Employment Tribunal the mistakes had been a result of her Dyslexia which caused her difficulties with reading, writing and telling the time.
The Employment Tribunal found that Starbucks had failed in its duty to make reasonable adjustments for Miss Kumulchew by:
- Requiring her to sign and agree notes of disciplinary meetings at the end of the meetings instead of allowing a reasonable time period to consider the contents;
- Failing to provide the notes of those meetings, which were in unusually small font, in a readable form; and
- Failing to provide documents relied on as part of the disciplinary investigation in a timely manner to allow her to prepare for the appeal process.
In addition, the Employment Tribunal found that Starbucks had failed to adhere to its own reasonable adjustments policy in awarding a disciplinary penalty to Miss Kumulchew and failing to refer her to occupational health to assess what impact her disability had had on her actions. These failures were found to have been acts of discrimination arising from Miss Kumulchew’s disability.
Disciplining an employee who has a disability
Although this Judgment does not establish any ground-breaking principles of law (and would not be legally binding in any event as a ‘first instance’ decision) it serves as a valuable reminder to employers of the duties to employees with learning disabilities. With the British Dyslexia Association estimating that one in ten people have Dyslexia to some degree, the potential for the mistakes in this case to be repeated by other employers in similar circumstances is relatively high.
The Employment Tribunal in this case were highly critical of Starbucks’ handling of Miss Kumulchew’s disability. It found that, despite being aware of her Dyslexia, managers had failed to provide her with the support and assistance she needed to avoid being placed at a disadvantage compared to her non-disabled colleagues. This was particularly alarming as managers had ignored previous requests by Miss Kumulchew for assistance in relation to her disability.
The procedural failings identified by the Tribunal in this case are relevant to any disciplinary investigation, regardless of whether the employee has a disability. Best practice dictates, for example, that employees should always be provided with documents in advance of a disciplinary meeting and should be allowed sufficient time to consider meeting notes. However this case is a stark reminder that any problems with the disciplinary process may have a far more pronounced impact on an employee who already faces barriers due to disability. For example, while rushing an employee’s consideration of meeting notes is undesirable in any circumstances it could, as in this case, cause someone with Dyslexia significant problems and undermine the fairness of the whole process.
One of the most important considerations for you when commencing any conduct investigation is to assess what factors might have affected the employee’s actions. The most obvious, and potentially most important, consideration would be whether the employee has a disability and, if so, whether this might have affected their conduct. If in doubt, it would be prudent for an occupational health assessment to take place to assess the impact of the disability. This is particularly important with disabilities such as dyslexia, where the nature and extent of the impairment may not be immediately obvious.
With a Dyslexic employee, adjustments such as providing support with the consideration of meeting notes or the provision of a recording device might be reasonable. On a day-to-day basis, managers might consider giving instructions to dyslexic employees verbally rather than issuing written instructions which may take them longer to understand, affecting their performance. It is crucial to engage closely with the employee to establish what steps they feel would help to remove or ameliorate any disadvantage.
John McArdle is part of the Liverpool Employment, Pensions and Immigration team. If you have any questions arising from this case please get in touch with John (firstname.lastname@example.org) or speak to your usual Weightmans contact.