Latest in Employment Law>Case Law>McAleese v Daly & Quality Care Services Ltd [2023]
McAleese v Daly & Quality Care Services Ltd [2023]
Published on: 07/12/2023
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Lecturer in Law and Barrister
Jason Elliott BL Lecturer in Law and Barrister

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

Background: 

The claimant commenced her employment as a care worker in July 2021 and it ended in November 2021The 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 muchShe 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 wokeThe claimant reported that she had a history of seizures but had not had one for over two years before she started employment with the respondentThere 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 resignationHowever, the claimant stated she continued to hand in sick lines because she believed she was still employedThe 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 discriminationThe Tribunal found that the only medical evidence came from the notes and recordsThese indicated some anxiety relating to work at the timeHowever, 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 resignationThere 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-employmentThe 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 itIn any event, it was found that the claimant had resigned and had not been dismissedAccordingly, 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 1995This 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/ 

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 07/12/2023