Mrs Kumulchew made various complaints against Starbucks including claims for sex discrimination, victimisation and whistleblowing. However, of particular interest is her claim for disability discrimination. Mrs Kumulchew suffers from dyslexia, a diagnosis of which her employers were aware and claimed that they understood.
The case focused on temperature readings that Mrs Kumulchew was required to take as part of her role. When these readings were taken incorrectly Starbucks alleged that Mrs Kumulchew was acting fraudulently and commenced disciplinary action. Mrs Kumulchew was issued with a written warning. Mrs Kumulchew disputed this and stated that she had simply mixed up her numbers as a consequence of her disability. Mrs Kumulchew was given lesser duties and told to retrain.
The judge found that Starbucks had failed in its duty to make reasonable adjustments, discriminated against Mrs Kumulchew because of her dyslexia and subjected her to victimisation. Her claims were upheld and the judgment provides a warning to employers who fail to deal with employees’ disabilities in a proactive manner.
What could Starbucks have done better?
Starbucks were heavily criticised for their approach to Mrs Kumulchew’s condition. Their witnesses were criticised for their “surprising lack of knowledge and understanding about equality issues”. In particular, the judge focused on the fact that Starbucks had failed to try to understand Mrs Kumulchew’s condition or consider any reasonable adjustments that were necessary. There had been no referral to Occupational Health, no workplace assessment or indeed any other steps taken to understand Mrs Kumulchew’s condition. The reasonable adjustments required by Mrs Kumulchew were clear. She required more time and slower explanations of tasks that needed to be done; she stated that she needed to be talked to “like a child”.
In fact, Starbucks had simply tried to avoid the issue by having others undertake tasks which Mrs Kumulchew could have done. Mrs Kumulchew stated that this caused resentment towards her from her colleagues. In addition, when Mrs Kumulchew’s managers found mistakes that Mrs Kumulchew had made’ rather than addressing these with Mrs Kumulchew and seeing if there was anything they could do to assist, they simply ignored the mistakes and Mrs Kumulchew received no feedback. When they reached the disciplinary stage the manager involved did not even review Mrs Kumulchew’s HR file. The Tribunal felt that she had “closed her mind” to Mrs Kumulchew’s disability.
What can you learn from Starbucks’ mistakes?
The case comes as a stark warning to employers. It is vital when dealing with individuals who have a disability that you try and understand that disability and the effect it has and then consider what (if any) reasonable adjustments are necessary. A referral to Occupational Health may be necessary and is likely to provide you with assistance with this. It is also important to remember that this is a continuing obligation. As jobs evolve over time it is important to consider adjustments as an ongoing process. Managers often shy away from dealing with disabilities as they are worried about making a mistake. The danger in that scenario is that they simple ignore it. Any line manager responsible for a team would benefit from equal opportunities training and it is important to ensure that this is updated throughout the period of employment.
The key message to take from this case is communication; this should be a collaborative exercise. An individual with a disability should be consulted with about how their condition affects them in the workplace and how you, as their employer, can help. Failing to consider the employee’s point of view due to a fear of what might be discovered or what steps you may need to take will not provide protection in the Tribunal and may be costly in the long run.
Kelly Mitchell is a paralegal in the employment team in Exeter. If you would like to contact the team, please call 01392 210700 or email employment@stephens-scown.co.uk.