Speaking volumes to spell changes

Feels sure Kumulchew case will change landscape for disabled workers '“ and for the better, writes Finlay McKay

Starbucks was taken to an employment tribunal and lost over a disability discrimination claim. Picture: PA

THE story which hit the headlines earlier this month about Meseret Kumulchew, the dyslexic woman who successfully pursued Starbucks at an employment tribunal, underlines the responsibility of employers to assess workplace adjustments for staff with disabilities.

As a supervisor at Starbucks at London’s Clapham Junction, Ms Kumulchew was responsible for taking the temperature of fridges and water at specific times and entering the results in a duty roster. Due to her difficulties with reading, writing and telling the time, she made a number of mistakes in carrying out these tasks. In response to these events, she was given reduced duties by her employer and offered additional training to support her.

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Ms Kumulchew took Starbucks to an employment tribunal successfully claiming disability discrimination, citing that her employer knew of her dyslexia and her need to be shown how to do tasks visually. A separate hearing will also determine what (if any) compensation should be made to her. While the case does not set a legal precedent, it should serve as a reminder for employers about their obligations to make reasonable adjustments for disabled employees.

Starbucks appears an unlikely culprit given its diversity statement and global human rights statement. But being committed to promoting diversity in the workplace and putting an emphasis on inclusion and equality is insufficient. Employees expect commensurate workplace arrangements, applicable to all employees, irrespective of their protected characteristics under the Equality Act 2010 (EA) including race, gender, sexual orientation and disability.

Disability is defined as a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Dyslexia is not automatically deemed a disability, the focus is on the prevailing symptoms.

When an employer is aware, or should reasonably be aware, of an employee’s disability and there are “provisions, criteria or practices” that put that individual at a substantial disadvantage compared to other colleagues who are not disabled, reasonable steps must be taken to avoid such disadvantages. There is a responsibility to assess the need for and nature of any adjustments that are required.

Where medical conditions are identified, employment tribunals expect larger employers in particular, to use their financial and administrative scale to obtain guidance from relevant occupational health professionals (and, in this case, from bodies like the British Dyslexic Association). Although larger employers will often take such advice, it needs to be considered alongside all of the facts and circumstances of the case in determining whether reasonable adjustments need to be implemented in the work place. Awareness of Ms Kumulchew’s dyslexia would, reasonably, trigger an assessment of her suitability to check and record temperature data under time pressure in a busy, noisy environment.

Guidance encourages employers to identify inexpensive practical changes. Some potential adjustments suggested were that some of Ms Kumulchew’s duties could have been allocated to a colleague or she had been transferred to a role where she would not have been required to perform the tasks that were troublesome for her. Assessing whether an adjustment is reasonable is a judgment call against an objective standard – not always straightforward.

This case underlines the responsibilities for employers in managing work-related issues around staff with disabilities. Employers have a positive obligation to consider reasonable adjustments within the work place to accommodate an employee’s disability, regardless of whether they are asked by the individual for these to be implemented. Any adjustments arranged should be kept under regular review to ensure their continuing appropriateness.

While Starbucks says is it now looking at taking on the some of the points above and assessing how it can provide more workplace support, the judgement in favour of Ms Kumulchew could have at least a short term detrimental impact on its brand despite the concerns raised by the tribunal being directed at a small number of employees who made unintended mistakes.

• Finlay McKay is an employment partner at CMS Cameron McKenna