Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Connolly v S/N Cathy Burke Personal Representatives of F ... Tom Wilson [2011] NIIT 00395_10IT (27 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00395_10IT.html
Cite as: [2011] NIIT 395_10IT, [2011] NIIT 00395_10IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 395/10

CLAIMANT: Anne Marie Connolly

RESPONDENT: 1. S/N Cathy Burke

2. Personal Representatives of F G Wilson (Deceased)

3. Tom Wilson

DECISION

The unanimous decision of the Tribunal is that the claimant was not discriminated against by reason of or on the grounds of disability.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Ms G Ferguson

Mr P McKenna

Appearances:

The claimant appeared and represented herself.

The respondent was represented by Mr Kennedy, Barrister at Law, instructed by McGrigors Solicitors.

SOURCES OF EVIDENCE

1. Oral Evidence

The Tribunal heard from the claimant.

On behalf of the respondent, the Tribunal heard from Ms Beth Henry, carer to Mr and Mrs Wilson and Staff Nurse Cathy Burke, Nurse Manager to Mr and Mrs Wilson.

2. Documents

The Tribunal received a bundle of documents prepared for the hearing including two medical reports, one from Dr Garth Login, GP Specialist in Rheumatology and one from Mr R S Bale, Consultant Orthopaedic and Trauma Surgeon.

3. Findings of Relevant Facts

The Tribunal found the following relevant facts either as agreed between the parties or on a balance of probabilities:-

(1) The claimant commenced employment for the respondent on 4 May 2009 as a Care Assistant in the private home of Mr and Mrs Fred Wilson who employed a number of carers all of whom worked on a shift basis providing Mr and Mrs Wilson round-the-clock personal care. The claimant was dismissed on 1 December 2009.

(2) At the time of the claimant’s employment with them both Mr and Mrs Wilson were alive. However, both were elderly and frail and Mr Wilson was in particularly poor health. He subsequently died in February 2010, some two months after the claimant’s dismissal.

(3) The claimant was interviewed by Mrs Cathy Burke, who was a Staff Nurse employed by Mr and Mrs Wilson. Mrs Burke had been directed by Mr and Mrs Wilson’s son, Tom, to recruit an additional Care Assistant and she interviewed and appointed the claimant.

(4) Prior to her permanent appointment the claimant first worked for Mr and Mrs Wilson at the beginning of February 2009 and carried out a number of shifts and then left. She subsequently received a telephone call from Mrs Burke asking if she would like a full-time job. At this time, the claimant was off on sick-leave from her own job and was in receipt of Incapacity Benefit.

(5) The claimant advised Mrs Burke of her then circumstances and said that consequently she was not in a position to accept the job. However, it was agreed between the parties that the claimant would commence her employment with Mr and Mrs Wilson while she was still in receipt of Incapacity Benefit. It was arranged that although the claimant worked between 30 and 40 hours per week for Mr and Mrs Wilson from in or about February 2009 she would not be paid her wages until May 2009. The claimant continued to receive Incapacity Benefit during this period and the respondents were aware of this fact.

4. Events leading up to the Dismissal

(1) Saturday, 28 November 2009

On this date, the claimant had agreed to work an extra shift which would have been over and above her normal shift rota duties for that week. However, some time before the shift was due to commence the claimant rang the Wilson house and spoke to Mrs Burke. She informed Mrs Burke that she would be unable to cover this shift because she was not well enough to do it. Mrs Burke agreed to get the shift covered.

(2) At hearing the claimant stated that she believed that if she had been able to cover this extra shift that “none of us would be here now”. On closer questioning the claimant stated that she felt that her inability to cover this extra shift had been a part of the decision to dismiss her. This was denied.

(3) Sunday, 29 November 2009

On 29 November 2009 Mrs Burke contacted the claimant to check if she was feeling well enough to do her own shift that evening from 6.00 pm to 9.00 pm. The claimant confirmed that she would be there.

(4) The claimant arrived into work just before 6.00 pm that evening. The claimant stated that she spoke immediately to Mr and Mrs Wilson but stated that she had been interrupted several times just after her arrival by her colleague, Ms Lundy, whose shift was just ending. Ms Lundy asked the claimant if she had not received Ms Lundy’s texts, sent earlier to the claimant’s phone, asking the claimant if she could arrive a bit earlier for her shift as Ms Lundy had been anxious to get away early. The claimant confirmed that she had received Ms Lundy’s text but that she had been unable to reply to it as she had insufficient credit on her phone to enable her to do so. The claimant stated that her colleague seemed to be annoyed with her for not having got back to her on this.

(5) There was a divergence in the evidence between the claimant and both Ms Lundy and Mrs Beth Henry as to how the claimant’s shift progressed. The Tribunal approached the evidence of Ms Lundy with some caution given that it was put to the Tribunal in statement form only and although the claimant had been given an opportunity to refute the allegations in it the Tribunal remained unhappy that Ms Lundy had not been called to give this evidence. As a consequence, while the Tribunal did not discount it, the Tribunal did not accord this evidence its full weight as if it had been presented to the Tribunal orally by Ms Lundy.

(6) The two versions of the claimant’s shift on 29 November went like this:-

The claimant stated that she had arrived at the house and had spoken to Ms Lundy. The claimant stated that she was conscious that Ms Lundy seemed angry with her for not having replied to a text she had sent the claimant earlier. The claimant accepted that she had received a text from Ms Lundy asking the claimant if she could start her shift a bit early as Ms Lundy was anxious to get away a bit earlier. The claimant accepted that Ms Lundy had repeatedly asked her why she had not replied to her texts.

(7) Ms Lundy’s statement also noted that when the claimant arrived for her shift she was well wrapped up but still shivering and shaking. Ms Lundy noted that Mrs Wilson was becoming concerned about the claimant and that at this Ms Lundy had offered to cover the claimant’s shift if she preferred to go home. At this stage Ms Lundy’s statement indicated that she could smell alcohol fumes from the claimant and believed that the claimant was trying to avoid her.

(8) According to Ms Lundy the claimant spoke to Mrs Wilson on arrival and advised her that she was still feeling unwell and was on medication. The claimant denied this. The claimant accepted that on her arrival she had spoken to Mrs Wilson who had asked her about her sickness the previous day and the claimant replied that something had come over her but that she felt perfectly fine now.

(9) Ms Lundy’s statement went on to add that Mrs Wilson had called Ms Lundy back into the living room and asked her directly if “that wee girl is safe to stay here”. Ms Lundy’s statement indicated that she had reassured Mrs Wilson on this point but had again asked the claimant if she wanted Ms Lundy to cover her shift.

(10) Ms Lundy finished her shift at approximately 6.00 pm and noted that Mrs Wilson seemed contented at that stage. However Ms Lundy tried contacting Mrs Burke by phone to advise her of the situation but could not get a reply. She left a text message on her phone and contacted Mrs Beth Henry and told her what had happened.

(11) The claimant accepted that Ms Lundy had expressed concerns about her state of health but that she had told her that she was fine. She also stated that she was confused by Ms Lundy’s behaviour towards her when Ms Lundy asked her if she was feeling okay and then offered to cover her shift.

(12) The claimant stated that she had no idea why Ms Lundy had made this offer and stated that she thought it was strange especially when Ms Lundy had gone to some lengths to make it clear to the claimant that she had wanted to get away from her own shift early. However the claimant refused to accept that this apparently contradictory behaviour was a measure of Ms Lundy’s concern for the claimant’s state of health and her anxiety that the claimant was not fit to be at work.

(13) The claimant stated that she had continued with her shift in the normal way. She also accepted that during the latter part of her shift she was aware of the fact that Mrs Wilson had been trying to contact Mrs Burke but claimed that she did not know why Mrs Wilson wished to do so. The claimant noticed that Mrs Wilson had a business card for Mrs Burke beside her bed but the claimant offered no and gave no assistance to Mrs Wilson to try to reach Mrs Burke for her.

(14) Mrs Henry commenced her shift just before 9.00 pm. Mrs Henry took an oral handover report from the claimant during the course of which Mrs Henry noticed that the claimant’s head tilted to the left and her shoulder was raised and Mrs Henry believed the claimant to be in some discomfort.

(15) At the end of the handover report Mrs Henry asked the claimant if she was feeling okay and the claimant replied “no, I haven’t been feeling well all day, I couldn’t get heat into me and I have had to wear my jacket the whole time”. The claimant then added that she did not know what was wrong with her as she kept shaking and with that Mrs Henry stated that the claimant had said “look” and had raised her two hands to demonstrate a slight tremor in them.

(16) After this conversation, Mrs Henry went upstairs to see Mrs Wilson who was in an agitated state and said “Is she gone? I want her away out of my house.” Mrs Henry confirmed that Mrs Wilson was referring to the claimant and Mrs Wilson added that it had been terrible for them that evening, that Mrs Wilson had noted the claimant had worn her jacket the whole time she had been on her shift and appeared shivery and that she had been afraid that the claimant would have an accident with her husband. Mrs Wilson added “I don’t trust her (the claimant). I don’t want her to look after us anymore.”

(17) Mrs Henry sought to calm and reassure Mrs Wilson who insisted that Mrs Henry contact Mrs Burke. It appeared that Mrs Wilson had been trying to contact Mrs Burke off the business card the claimant had noted but in fact this was not a number Mrs Burke could be contacted on.

(18) Mrs Henry did not contact Mrs Burke at that stage. Instead having heard the front door close she assumed the claimant had left and she went to check on Mr Wilson. On her return downstairs Mrs Henry noted that the claimant had gone. She sat with Mr Wilson for a short while before putting him into bed.

(19) Mrs Henry returned to Mrs Wilson’s bedroom and noted that Mrs Wilson was still in a state of anxiety. At this point Mrs Henry attempted to contact Mrs Burke but it was not until 10.00 pm when Mrs Burke rang back. Mrs Henry spoke to her first and explained what had happened and that Mrs Wilson was very upset. At this point Mrs Henry handed the phone to Mrs Wilson so that she explained to Mrs Burke the events of the evening.

(20) Mrs Burke told the Tribunal that Mrs Wilson had been very upset with Mrs Burke, in that Mrs Wilson remonstrated with her for allowing the claimant to come on duty when the claimant was clearly unfit to be there. Mrs Burke stated that Mrs Wilson had said that the claimant had shivered throughout the whole of the evening and had complained of feeling cold. Mrs Burke stated that Mrs Wilson had feared that the claimant would pass her sickness on to either herself or to her husband Mr Wilson.

(21) Mrs Burke sought to reassure Mrs Wilson and confirmed that she had checked with the claimant her fitness to work.

(22) Mrs Burke stated that she had noted a text from Ms Lundy in relation to the allegation of smelling alcohol off the claimant’s breath. Mrs Burke spoke to Ms Lundy the following morning who confirmed this opinion and also stated that the claimant had said she had felt sick and unwell during her shift.

(23) On 29 November 2009 Mrs Burke had received an allegation from another staff member, Ms Lundy, that alcohol had been smelt on the claimant’s breath when the claimant had arrived for duty on that evening. Mrs Burke was also advised by another staff member, Mrs Beth Henry, that Mrs Wilson had become agitated and anxious during the shift because she had been concerned that the claimant had not been fit for work. Mrs Henry had taken over from the claimant at the end of her shift and had found her in this state and had assisted Mrs Wilson telephone Mrs Burke to express this anxiety.

(24) As a result of these concerns, Mrs Burke contacted the claimant on 30 November and arranged to see her at the claimant’s home that evening at 5.00 pm. This meeting did take place although the claimant was slightly late for it as she had had an appointment with her GP at 4.00 pm just prior to the meeting.

(25) At the meeting Mrs Burke advised the claimant of the allegation in relation to alcohol on her breath and that Mrs Wilson had been very agitated and upset at the end of the claimant’s shift as Mrs Wilson believed that the claimant had not been fit for work. The claimant denied that she had had alcohol on her breath. She stated that she had had her dinner and had brushed her teeth and had used mouthwash as she normally did and this may have been the reason for the smell of alcohol on her breath.

(26) Mrs Burke also advised the claimant that she had been told by Ms Lundy and Mrs Beth Henry respectively that the claimant had been shivery and shaking and that on her arrival on shift the claimant had told Mrs Wilson she was feeling unwell and was on medication; that Mrs Wilson had been very anxious throughout the claimant’s shift and had tried on several occasions to contact Mrs Burke to complain about the claimant and when Mrs Wilson finally spoke to Mrs Burke on the night of 9 November 2009 she advised her that Mrs Wilson was fretful and agitated after the claimant’s shift due to her anxiety that the claimant had been unwell. Mrs Burke advised the claimant that she would investigate the complaint in relation to the alcohol and would come back to her the following day.

(27) The Dismissal

The following day, 1 December 2009, Mrs Burke rang the claimant and advised her that there had been a meeting with the family and it had been agreed that the claimant should be “let go”. Mrs Burke advised the claimant that this decision had been taken irrespective of the allegation of alcohol. Mrs Burke advised the claimant that it had been decided not to take the allegation about alcohol further as this was a question of being the claimant’s word against her colleague’s. Mrs Burke advised the claimant that her employment was being terminated on the basis of Mrs Wilson’s lack of confidence in the claimant to look after her and her vulnerable husband.

(28) The Tribunal concluded on the basis of all the evidence before it in relation to the events of 29 November 2009 that the claimant had arrived to work on her shift feeling unwell, that she had made this known to Mrs Wilson and that she had appeared to Mrs Wilson and her colleagues to be unwell.

(29) The Tribunal concluded that this had given Mrs Wilson a great deal of anxiety and accepted that when found by Mrs Henry Mrs Wilson was in a state of some agitation. The Tribunal concluded that Mrs Wilson had sought to contact Mrs Burke during the course of the claimant’s shift. The Tribunal accepted the evidence of Mrs Henry and Mrs Burke to the effect that Mrs Wilson had been extremely concerned and frightened by the claimant’s behaviour during her shift and of the concerns she had of the claimant bringing infection into the house when her husband was at such a vulnerable stage of his illness.

5. The Claimant’s Letter of 15 December 2009

(1) The claimant wrote to Mrs Burke on 15 December 2009, however, the claimant sent the letter to the wrong address and it was returned to her in January 2010. The claimant then hand delivered the letter on 21 January 2010. This letter stated that the claimant was raising a grievance and sought an appeal against her dismissal and/or the disciplinary action taken against her. In this letter the claimant contended that there had been no investigation into the allegation regarding the smell of alcohol on her breath and that she had been let go for health reasons and for health and safety concerns for Mr and Mr Wilson and herself.

(2) The claimant’s letter also contended that the claimant believed she had been dismissed due to a medical condition she had had from the outset of and throughout her employment. The claimant also contended that she had not received any written correspondence in relation to her dismissal and that she had never received any terms and conditions of employment. She also contended that there had been no assessment by the respondent of her medical condition nor had any issues ever been identified in relation to it which would have posed any risks to herself and/or Mr and Mrs Wilson.

(3) The letter went on to state that the claimant believed that she had been discriminated against under the Disability Discrimination Act as other staff members had also had periods of sickness and had not been dismissed for these.

(4) The letter also stated that the claimant believed her dismissal had come about after a letter addressed to the claimant, but sent to the Wilson house, had been opened by Mrs Wilson. This letter had been from Social Security and related to the claimant’s claim for renewal of disability living allowance. The claimant stated that after Mrs Wilson had had sight of this letter she had constantly asked the claimant if she was feeling well and had made her feel incompetent at her job.

6. The Claim and the Response

(1) The claimant did not receive a reply to her letter of 15 December 2009 until April 2010. In the interim the claimant lodged her claim form on 19 February 2010 and the respondents presented the response on 30 March 2010.

(2) The claimant claimed unfair dismissal and disability discrimination and deformation of character. On her claim form the claimant reiterated her view that she had been dismissed on the grounds of a disability as a consequence of Mrs Wilson’s having opened the claimant’s letter from Social Security (mid November 2009), that Mrs Wilson had become aware of the contents of the letter and this was the reason she was ultimately let go.

(3) The respondent’s response denied the claimant had been dismissed on the grounds of any disability but that her dismissal had been the result of the claimant’s performance during her work shift on 29 November 2009 subsequent to which Mrs Wilson became no longer confident or comfortable with the claimant looking after her or her husband and that her dismissal had nothing to do with the contents of the letter from Social Security.

7. The Respondent’s Reply to the Claimant’s letter of 15 December 2009

(1) The claimant received a letter dated 27 April 2010 in which the respondents replied to her letter of 15 December 2009. The letter was written by Mr Eamon McKee on behalf of an organisation called Silverwood Property Developments Limited. This organisation acted on behalf of the personal representatives of Mr Fred Wilson providing payroll services and advised the claimant that he had been asked by Mr Wilson’s representatives to respond to her letter. Mr McKee advised the claimant that he had considered the points her letter had raised and had consulted with others and noted the following:-

That a letter addressed to the claimant which was posted to her at Mrs Wilson’s home had been opened by Mrs Wilson inadvertently. She had opened the letter in the ordinary course of opening her post and had not realised the letter in question was not for her until she had read it.
That Mrs Burke had spoken to the claimant the day after her shift on 29 November 2009 on the basis that Mrs Wilson had been very agitated after the claimant’s shift and that one of her colleagues had reported the claimant’s breath smelling of alcohol. Mr McKee’s letter added that the allegation in relation to the smelling of alcohol had not been investigated after the claimant’s denial, on the basis that it would have been the claimant’s word against her colleague’s and that matter was therefore not taken any further.

The letter advised the claimant that she had been told (by Mrs Burke) that she was being let go due to the ongoing decline in Mr Wilson’s health and Mrs Wilson’s loss of confidence in her being able to care for both of them.

The letter confirmed that the respondent did not take any medical condition of the claimant’s into account in dismissing her, that the decision to dismiss her was based on a breach of trust and confidence and went on to deny on Mrs Wilson’s behalf that Mrs Wilson had breached a confidentiality in reading the claimant’s letter and that Mrs Wilson further denied making “constant remarks” about the claimant’s health after this letter had been opened.

8. At Hearing

(1) It was agreed between the parties that Mrs Wilson lived in a state of high anxiety about the risks illnesses carried by staff members could have for her and for her sick and vulnerable husband Mr Wilson. Mrs Burke also stated that Mrs Wilson had a kindly, if fretful, concern about the health of her staff members.

(2) It was accepted by the claimant that Mrs Burke had advised all staff members not to come into work when they were feeling in any way unwell. It was also accepted by the claimant that she had done so on previous occasions and had had to be spoken to by Mrs Burke, reminding her not to do it again.

(3) Mrs Burke also asked staff members not to discuss their personal health issues with Mrs Wilson as this caused her anxiety on two levels; for the sake of her own and her husband’s health and the concern she had for staff.

(4) The claimant stated that she did not discuss her personal health issues with Mrs Wilson. She stated that she kept Mrs Burke up-to-date with her need for time off for medical appointments and for developments in relation to her painful shoulder but that she did not make any complaint or otherwise tell Mrs Wilson any of her personal health issues.

(5) The claimant stated that she had no need to discuss her health at work and she made it clear that her ongoing health issues did not in any way hinder her at work. The Wilson household was well equipped with the requirements needed to make lifting and personal care easier but there was still a significant amount of physical input required from a staff member. The claimant stated that apart from occasionally struggling to assist with Mr Wilson, as did everyone, she had absolutely no difficulty in doing any aspect of her work.

(6) However both Mrs Henry and Mrs Burke stated that the claimant was quite open and free in her discussions about her personal health issues; to the extent that Mrs Henry and the claimant had a conversation about the particulars of Fibromyalgia and how Mrs Henry’s own daughter was possibly suffering from the same thing.

(7) The Tribunal concluded that the claimant did discuss her personal health issues with Mrs Wilson and other staff members and in reaching this conclusion the Tribunal took account of its findings of fact that the claimant had spoken to Mrs Wilson on the night of 29 November 2009 advising her that she felt unwell and was on medication. The Tribunal also took account of the fact the claimant admitted that she had previously been in breach of Mrs Burke’s edict that staff were not to come to work when they felt unwell.

9. The Alleged Disability/Disability Related Dismissal

(1) The claimant stated that her dismissal had been on the grounds of or related to disability on the basis that:-

(i) Mrs Wilson had become aware that the claimant had at least been considered for or had been previously in receipt of Disability Living Allowance; and

(ii) for the ongoing difficulties she had been having with her shoulder, being treated under the umbrella diagnosis of Fibromyalgia.

(2) The claimant had suffered from pains in her shoulder for some time even before she commenced her employment with the respondents. The medical evidence indicated that the cause of the pains was hard to pinpoint, the claimant having sustained a number of falls over the years and the pain having been exacerbated by the shoulder having been yanked by the claimant’s dog.

(3) In or about August 2009 the claimant’s General Practitioner referred the claimant to a Consultant Orthopaedic Surgeon to assess the claimant for possible alleviative surgery.

(4) On the day of her medical appointment exploring the possibility of surgery Mrs Burke tried several times to contact the claimant by telephone but was unable to reach her. Mrs Burke was ringing on Mrs Wilson’s behalf, who was anxious and agitated about how the claimant had fared at that appointment.

(5) The claimant rang back the following day, apologising for the delay in returning the call. It was common case between the parties that at this point Mrs Wilson took over the phone and the claimant, who felt that she had been “backed into a corner”, gave Mrs Wilson the details of what had transpired at the appointment.

(6) However, the Tribunal did not accept the claimant’s version of events. The Tribunal concluded that the claimant had in fact advised Mrs Wilson of her forthcoming appointment and that Mrs Wilson had become at least concerned, if not fretful and anxious, on the claimant’s behalf.

10. The Law

(1) Disability Discrimination

The law on disability related discrimination is set out at Section 3A(1) to (4) of the Disability Discrimination Act 1996 (The DDA). Disability related discrimination occurs when an employer’s treatment is for a reason which relates to the employees disability, the treatment is less favourable than the way in which the employer treats or would treat others to whom that reason does not or would not apply and the employer cannot show that the treatment is justified.

(2) In the decision of London Borough of Lewisham v Malcolm 2008 the House of Lords held that the comparator should be a non-disabled person in the same position as the claimant.

(3) The Burden of Proof

The burden of proof provisions provide that the claimant must prove facts from which the Tribunal could conclude in the absence of an adequate explanation that for a reason relating to her disability she has been treated less favourably than a person without her disability or otherwise in her position has been treated or would be treated. If the claimant does prove such facts the burden of proof shifts to the respondent to show that the claimant has not suffered the less favourable treatment for a disability related reason or if she has that the treatment was justified.

(4) Section 42d of the DDA 1995 provides that it is unlawful for an employer to discriminate against a disabled person whom he employs by dismissing him or subjecting him to any other detriment. It is for the employee to prove primary facts from which the Tribunal could conclude that discrimination occurred. If the claimant does prove such primary facts the burden of proof shifts to the employer to prove that the discrimination did not occur.

11. The Tribunal’s Conclusions

(1) The Tribunal concluded that the claimant had failed to establish any evidence to suggest that she had a disability under the Disability Discrimination Legislation. The Tribunal noted the claimant’s medical evidence and its reference to pain and difficulties which the claimant had in her shoulder and a reference to possible Fibromyalgia and for these purposes it was not disputed by the Tribunal that this condition was genuine. However, the Tribunal noted that none of the medical evidence established that the claimant was suffering from a physical (or mental) impairment which had substantial and long-term adverse effect on her ability to perform normal day-to-day activities.

(2) Further the Tribunal noted that it was the claimant’s own case that her condition and/or painful shoulder had not interfered with her ability to do her work for Mr and Mrs Wilson. The Tribunal noted the claimant’s evidence of her continued insistence that she had been able to carry out all aspects of her work including the use of all equipment necessary, and that there had never been any issues taken up with her about her ability to do her work. The Tribunal also noted the claimant’s resentment at Mrs Wilson’s concern for her in that the claimant felt that the constant scrutiny was making her feel incompetent, not that she had any difficulty doing her work.

(3) The Tribunal concluded in the light of this evidence and the absence of any evidence establishing that the claimant had either a physical or mental impairment which had a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities that the claimant had not established that she suffered from a disability.

(4) The Tribunal also concluded, in light of its findings of fact, that the claimant had failed to establish any fact from which a tribunal could, or might, in the absence of an explanation from the respondents, conclude that any disability had been a factor or a reason for her dismissal or that her dismissal was in any way related to a disability.

(5) In reaching this conclusion the Tribunal took into account the sometimes contradictory nature of the claimant’s evidence. For example, the claimant stated in evidence that from the time she had opened the claimant’s letter from Social Security Mrs Wilson had often asked the claimant how she was feeling. The claimant stated that Mrs Wilson’s “constant remarks” about her health made the claimant feel incompetent by suggesting that the claimant was not fit to do her work. However, the claimant then stated in her cross-examination that Mrs Wilson’s attitude of anxious mistrust towards her had “got worse” when she became aware of the claimant’s need for an operation on her shoulder. However, the Tribunal noted that this sequence of events was not possible given the fact that Mrs Wilson had become aware of the claimant’s need for an operation in late August/early September and that the letter she had opened by mistake from Social Security had only arrived to the house in early November 2009.

(6) The Tribunal concluded that the claimant’s dismissal had come about as the result of Mrs Wilson’s loss of trust and confidence in the claimant because of the manner in which she had presented herself at work that night.

Accordingly the Tribunal dismissed the claimant’s claim for disability discrimination.

Chairman:

Date and place of hearing: 15-17 December 2010, Belfast.

Date decision recorded in register and issued to parties: