Max Lansman acted for the personal representatives of an ex-employee of M&S who was dismissed following her cancer diagnosis. The tribunal extended time for the claim to be brought and found that she had been discriminated against on the basis of her disability.
Background to the claim
Mrs S started work as an M&S sales adviser in March 1990.
In 2011 she was diagnosed with ovarian cancer and was treated with surgery and chemotherapy.
In 2018 her cancer returned and had spread to the lung which she explained to her employer.
Over the following years, she was off from work for significant periods due to her illness and treatment.
In April 2021, Mrs S’s line manager changed, and her new manager did not get a sense of the severity of Mrs S’s condition. By May 2021, unbeknown to M&S, Mrs S’s health had seriously deteriorated.
Mrs S’s line manager attempted to contact her on various occasions. M&S invited her to an interim health meeting and tried to contact her and offer other means of communication.
However when Mrs S spoke to her line manager she said she had been in hospital for more than a week and asked her employer to speak to her son or daughter in future as she was very unwell. M&S repeatedly refused to speak to Mrs S’s children, insisting on speaking to her personally, despite having a policy allowing it to speak to the next of kin of colleagues with serious health conditions.
Subsequently M&S granted her special leave due to her husband’s death in late June 2021. Following which, Mrs S took sick leave until late August 2021.
At a disciplinary meeting on 25 August 2021, which Mrs S did not attend M&S having continued to refuse to speak to her children in her place, Mrs S was dismissed because of her ‘unreasonable levels of absence’ and lack of response to various communications from her employer.
She died 2 weeks later.
Extension of time
In her role as a personal representative of her mother’s estate, Mrs S’s daughter brought claims for unfair dismissal and disability discrimination more than 2 years out of time in December 2023.
After hearing Max’s arguments, the tribunal found it was ‘just and equitable’ to extend the deadline for the Equality Act claim given:
- the double bereavement Mrs S’s children were dealing with
- the dyslexia diagnosis of Mrs S’s daughter, and
- the incorrect advice from 2 legal helplines her daughter received about waiting until the grant of probate to initiate the claim.
Disability discrimination and failure to make reasonable adjustments
The tribunal found that Mrs S had been discriminated against on the basis of her disability.
The tribunal found that:
- Mrs S was absent from work because of disability
- her absence without leave arose from her disability
- she was unable to correspond with her employer because she was dying from cancer that was arising from disability
- M&S had failed to make reasonable adjustments by speaking to Mrs S’s next of kin, in line with its own policies, or offering to visit Mrs S at home.
The tribunal concluded that reasonable adjustments would have alleviated the disadvantage.
Read the tribunal decision in full in Ms S Sewraj (as the personal representative of Mrs S Sewraj) v Marks and Spencer plc
The case was referred to Max by Atkinson Rose LLP.