Rajiv Bhatt successfully represented the Claimant, Ms Meseret Kumulchew, in her sex and disability discrimination, victimisation and whistleblowing case against Starbucks, Vishal Ballee (the store manager at the time) and Sharon Sherrett (the area manager). The case, Kumulchew v Starbucks. has been widely reported by the BBC.
Ms Kumulchew is employed as a Qualified Shift Supervisor at a Starbucks store. She is dyslexic and struggles with reading, spelling and comprehension with information - she requires things to be broken down step by step. Starbucks was aware of her dyslexia from an early stage in her employment.
As part of her duties, Ms Kumulchew was required to take fridge and water temperatures and to write these down in a Duty Roster Notebook. During a supervisor shift assessment in March 2014, her managers (the Second and Third Respondents) noticed that she had made some incorrect entries in the Duty Roster Notebook. Ms Kumulchew was accused of “falsifying” the Duty Roster Notebook and an investigation ensued. Ms Kumulchew maintained throughout the disciplinary proceedings that she had made a mistake which was attributable to her dyslexia. The disciplinary hearer required Ms Kumulchew to prove her dyslexia with a “certificate” before her mitigation could be considered. Ms Kumulchew had consulted her GP who had informed her that dyslexic people are not provided with certificates, but Starbucks could send her to a company doctor should it so wish. Despite this, she was not sent for a medical assessment and was given a written warning.
To add to matters, Ms Kumulchew had made various complaints alleging sex discrimination on the part of a fellow employee. She had also brought previous tribunal proceedings alleging race discrimination, which had settled. The tribunal found that these equated to protected acts and some of which were also protected disclosures.
In a damning judgment, the tribunal found a large proportion of the oral evidence given by the Respondents’ witnesses’ to be inconsistent and lacking credibility. It held that Ms Kumulchew’s disciplinary and written warning amounted to discrimination in relation to something arising out of her disability. The procedure adopted by Starbucks during the disciplinary process was also criticised in that various disciplinary notes were not provided in typed form nor in a timely fashion; this amounted to a failure to make reasonable adjustments.
The tribunal also made considerable findings in relation to the victimisation and whistleblowing claims. In particular, it found that the disciplinary hearing was “manifestly unfair” and that Ms Kumulchew was “given a warning for raising four protected acts” and a protected disclosure.
Chris Milsom commenting on the case said:
"Three points are worthy of note following the ET's judgment:
Firstly, it reveals the continued commitment of the Bar in general and Cloisters in particular to the pro bono ethic. It is evident on the face of the judgment that without the sterling work of Rajiv, particularly in the cross-examination, over a hearing that lasted many days the truth may not have come to light.
Secondly, the decision is a powerful illustration of the dangers faced by multi-national organisations whose policies may be laudable but they are only as good as each individual branch. The ETs comprehensive reasons paint a picture of opaque recruitment practices, failures to investigate serious allegations of sex discrimination and an obliviousness to disability in the workplace.
Finally the judgment is a cogent reminder of the social model of disability. The focus is and must be on participation in society and most particularly in the workplace. Disabilities which may not be immediately apparent nonetheless place employees at a real and substantial disadvantage which must be remedied. Dyslexia may present difficulties for employers in that it is perhaps a condition which can be hidden but when one reads the ETs findings as to the construction of the disciplinary charges the distress experienced by this employee is palpable. Real and effective action must be taken in all workplaces to remedy it.”
Rajiv was instructed by Jenna Ide of Thomas Mansfield Solicitors Limited.
For further news coverage on the case see: