Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 1200/06

CLAIMANT: Karen McConnell

RESPONDENT: PINC Retail Limited

DECISION ON PRE-HEARING REVIEW

(as given to the claimant at the hearing)

The decision of the tribunal is that the claimant is a person with a disability within the meaning of the Disability Discrimination Act 1995 and has one year's continuous service to enable her to bring proceedings for unfair dismissal.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr P Cross

Appearances:

The claimant was represented by Mr McCarron of Gerald P Henvey Solicitors.

The respondent did not appear and was not represented.

The issues

1. Whether the claimant was a person with a disability within the meaning of the Disability Discrimination Act 1995 ("the Act").
2. Whether the claimant has one year's continuous service for the purposes of her unfair dismissal claim.

The evidence

3. The tribunal heard evidence from the claimant and read two medical reports referred to below.

The decision of the tribunal

4. The tribunal heard from the claimant that she was epileptic. She handed to the tribunal a medical report dated 23 January 2007 from Dr Lusk of the Belfast City Hospital Neurology Clinic and a report dated 3 May 2007 from her GP Dr Bradley which made it quite clear that the claimant had been a sufferer from epilepsy for a number of years.
5. The medical evidence showed that the claimant had been attending the Neurology Department of the Belfast City Hospital for over two years. She has been diagnosed as an epileptic, having seizures on an average every six weeks. The condition is long term and has a substantial and long term adverse effect on the claimant's ability to carry out normal day to day activities. This being the case the tribunal holds that the claimant is a person with a disability within the meaning of the Act.
6. The claimant gave evidence that she started work with the respondents on a part time basis on 27 June 2005 and became a full time employee, with no gap in service, on 6 March 2006. Her employment terminated on 19 June 2006 when she was informed that she was going to be dismissed. The 19^th was a Monday and the claimant received a letter the next day giving written confirmation of this dismissal and stating that she was entitled to one week's pay in lieu of notice.
7. Under the provisions of Article 129(2) of The Employment Rights (Northern Ireland) Order 1996 ("the Order"), the effective date of termination for the purpose of calculating whether the claimant has been employed for one year is, the date on which notice would have expired if proper notice had been given to the claimant. In this case one week's notice given on 19 June would expire on 26 June. The Scottish case of O'Brien v Pacitti Jones (a firm) [2005] IRLR 888 held that the seven day's notice runs from the day after it is received. Thus the claimant in this case, who commenced employment on 27 June 2005, received notice that expired on 26 June 2006. Consequently she has exactly one year's employment and is entitled to the benefit of the provisions of the Order, including the right to bring proceedings for unfair dismissal.

Chairman:

Date and place of hearing: 8 June 2007, Belfast

Date decision recorded in register and issued to parties: