In the case of Sykes v Nails Inc ET/1801697/2016 the Employment Tribunal held that Ms Sykes, the Claimant, had been dismissed because of something arising in consequence of her disability, and awarded her £10,000 compensation.
The facts in Sykes v Nails Inc
Ms Sykes suffers from non-epileptic seizures, and had done so for a period of time intermittently.
Ms Sykes worked for Nails Inc as a full-time counter manager at its White Rose Store. She was absent for work between January 2016 and her dismissal on 23 May 2016 as a result of workplace stress and, further, the seizures.
Ms Sykes was dismissed on 23 May 2016 by Mr Jolley on the grounds of capability, namely ill health that resulted in her prolonged absence from work due to sickness. Mr Jolley based his decision on the fact that he required a greater level of attendance from staff members – he applied a ‘rule of thumb’ that staff members should have a 95% attendance record and Ms Sykes had fallen below that, having only a 62% attendance record. He also justified his decision on the basis that it was not foreseeable when Ms Sykes may be able to return to work and that there had been a large number of complaints since she had been absent from work, which he surmised was due to the store being short-staffed.
Ms Sykes made a claim in the Employment Tribunal for discrimination arising from disability.
The decision of the Employment Tribunal in Sykes v Nails Inc
The Tribunal determined that Ms Sykes was a disabled person for the purposes of the Equality Act 2010 as her seizures had a substantial adverse impact upon her normal day to day activities when they occurred.
The Employment Tribunal found that Ms Sykes had been subjected to discrimination arising from disability: she had suffered the detriment of being dismissed (the unfavourable treatment relied upon) and her dismissal was something that had arisen in consequence of her disability – she had been dismissed because her seizures had caused her to have an extended period off work sick. The Tribunal also found that a legitimate aim was not pursued by Mr Jolley in dismissing her and, in any event, her dismissal was not a proportionate means of achieving a legitimate aim in the circumstances: the Tribunal found, for example, that Nails Inc could have pursued a non-discriminatory alternative such as giving her extra time to recover from her condition or allow her to reduce her hours or work as a nail technician (instead of her position as counter manager).
The Employment Tribunal awarded Ms Sykes £10,000 as compensation for injury to her feelings.
Our solicitors’ view on Sykes v Nails Inc
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers should take great care when dismissing employees when the reason for the dismissal is something related to an employee’s disability – if the employer is unable to show a legitimate aim that they pursued in dismissing the employee, or they are unable to show that the dismissal was proportionate in the circumstances, then they could face paying out substantial compensation for disability discrimination.”