Background: 

The claimant commenced her employment as a care worker in July 2021 and it ended in November 2021.  The claimant did not drive so she was always with another carer on what were referred to as ‘double runs’. These shifts involved two members of staff as they included lifting clients. 

On 30th August 2021 the claimant was afflicted by a stomach bug and she informed her coordinator that she was unable to work later that day.    The co-ordinator replied stating she could not replace the claimant and she would have to attend her shift. In October the claimant asked for her hours to be cut citing that the work was becoming too much.  She stated that she was suffering seizures whilst sleeping (as witnessed by her partner).  The claimant did go to the GP and said that she had a sore neck after the events when she woke.  The claimant reported that she had a history of seizures but had not had one for over two years before she started employment with the respondent.  There was no evidence of same in the medical records.  

The claimant sent a message into a WhatsApp group citing that she was handing in her notice due to pressures of work including the stomach bug issue and how it was handled.   The respondent took this as an unequivocal resignation.  However, the claimant stated she continued to hand in sick lines because she believed she was still employed.  The evidence of the same were photographs of the sick lines and a mobile phone video of the claimant’s partner going into the second respondent’s premises.  

Outcome: 

The first claim was one of disability discrimination.  The Tribunal found that the only medical evidence came from the notes and records.  These indicated some anxiety relating to work at the time.  However, on balance this was short of the modest threshold of establishing that she was disabled.   The Tribunal further held that even if she was classified as disabled the respondent could not be expected to have known about it considering that it was not disclosed in the initial questionnaire or elsewhere.  

The Tribunal further outlined that the WhatsApp message was a resignation.  There was no compelling evidence to state that she remained in employment especially considering the lack of evidence relating to the sick notes.    On the protected disclosure, this related to an issue raised with the RQIA post-employment.  The Tribunal found that that as it was after the date of termination it could not be argued that she was dismissed as a result of it.  In any event, it was found that the claimant had resigned and had not been dismissed.  Accordingly, the claims were dismissed.  

Practical Guidance for Employers: 

The importance of ensuring that resignations are unequivocal is made clear in this case.   The WhatsApp message was regarded as being clear and as a result led to many of the claims being dismissed.   Another point to bear in mind is the fact that it is for the claimant to prove that they are dismissed within the definition of the Disability Discrimination Act 1995.  This was not done here with a lack of medical evidence nor notice given to the employer.   

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/