Complainant

Respondent

Anonymised Parties

A Pharmacy Technician

A Hospital

Representatives

Lorraine Lally B.L.

Byrne Wallace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011828-001

11/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011828-002

11/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011828-004

11/06/2017

The complainant has a disability and was employed by the respondent as a pharmacy technician on 1st October 1997. She is claiming that the respondent failed to provide her with reasonable accommodation and that she was victimised and harassed contrary to the Employment Equality Act 1998. She also referred a dispute under the Industrial Relations Act, 1969 in relation to bullying and she is also seeking redress under the Terms of Employment (Information) Act, 1994 in relation a reduction in her hours and pay.

The complainant has cerebral palsy. She was employed by the respondent as a pharmacy technician on a full-time basis in October 1997 and she worked on the wards in the hospital.   In 2005 she reduced her hours to 3 days per week. Because of her disability it was decided to change her duties and she was now based in the dispensary so her job no longer involved walking or standing.   She now worked at the hatch doing staff prescriptions, doing ward requisitions and she also did a sit-down job writing data to track controlled drugs into 4 different registers, a legal requirement under the Misuse of Drugs Acts. All issues in relation to controlled drugs needs to be recorded and it is a requirement that it is entered in the registers by hand, electronic recording is not acceptable.

In 2014 the complainant’s boss and chief pharmacist retired and a new chief pharmacist (CP) was appointed. She introduced some changes. In July 2015 she replaced the 4 A4 registers used for retaining data about the controlled drugs with one larger register. The complainant stated that before she started using the new register she expressed her concerns about the weight of the book and the fact that it would not fit on the desk. The matter was referred by the dispensary manager to OH for an assessment. An assessment was carried out and it was concluded that a new workstation was required so that the new register would not have to be moved by the complainant.

The new work station was installed in December 2015. The complainant said that she transferred all the balances from the old registers to the new register and commenced using it in February 2016. She said that she began to feel pain in her left arm and in April 2016 she experienced a severe problem with her back. She had to attend her consultant and was advised that the new register should be placed on a raised stand so that she would not have to bend over when she was making the entries. In 2016 the hatch duties at which the complainant worked for part of her working week ceased and this resulted in an increase in the time she spent writing.

She spoke to CP about her consultant’s recommendation about the new register and she was referred to OH. She attended an OH doctor and highlighted the health difficulties caused to her by the weight of the new register and the increase in handwriting.   The OH in a letter dated the 7th of June 2016 to CP recommended increased support and increased task variation which she believed would alleviate the complainant’s problems in carrying out her tasks. She had a meeting with CP on the 22nd of June 2016 to discuss the OH report. The complainant said that the meeting did not resolve her difficulties. CP told her she could not offer any other work within the pharmacy department and suggested that she could do the same hours over 4 days as opposed to the 3 days she now worked. The complainant suggested that she would work Monday, Wednesday and Friday so that she would have a day off in between to rest her upper limbs and CP agreed to it.

After this meeting CP advised the complainant to contact AA Ergonomics as they were expecting a call from her so as to arrange an assessment for the equipment she required.   The suggested plinth for the register and a new chair. She said that there was a delay in ordering the equipment because of budgets constraints and the equipment did not arrive until March 2017.

She had to attend physiotherapy for her hand and had to wear a splint. She was advised that she needed to limit the amount of writing and flipping pages in the new register. The OH suggested putting ribbons in the register to help her turn over the pages. In August 2016 a new stamp was introduced which she had to use up to 40 to 50 times per day. The complainant believes that she could be rotated out of the MDA register and do other work within the department such as data entry on the computer and prepacking medication into smaller quantities. On the 4th of October 2016 the complainant went out sick and was diagnosed with repetitive strain injury and was certified sick for 2 weeks.

She was told by OH to look for other roles in the hospital and advised to do up a CV. The complainant said that she received a telephone call from CH while she was still on sick leave regarding her return to work. She told her that her sick leave needed to be managed and that she was to submit medical certificate on weekly basis. She also enquired if she wished to come back to work in the pharmacy department. The complainant said that she told her that her expertise was in the pharmacy department and that she wanted to come back to work there but the changes that CP had introduced had caused her injuries and that these changes would have to be address before she could return to work on the MDA register. The complainant expressed an interest in a job in the laboratory and after exploring the position she discovered it was not suitable.

On the 22nd December 2016, the complainant had a meeting with CP and they discussed her return to work. She was offered to return to work on 2 mornings per week in the same place.   The complainant told CP she could no longer work on the heavy register as it had caused her an injury but she would computer work, pre-packaging and charging wards.

The complainant returned to work on 2 mornings per week on the 19th of January 2017.   She did all the work apart from writing in the MDA register. Another pharmacy technician came in to her office to fill out the register. This caused difficulties as she had to leave the office at 12.30 and go home as there was nowhere for her to do her work. HR was trying to find a suitable office for her. The complainant said that she had a number of meetings with OH, HR and her boss at which her role and new tasks were discussed. She was still working reduced hours of 13.5 per week and she was advised that she should remain on these hours for rehabilitation purposes. The complainant said that she was upset by the reduced hours because it was impacting on her ability to pay her mortgage and other bills.   She said that CP was not happy for her to train in new jobs such as doing invoices.

On the 20th of October 2017 she was placed on administrative leave by HR so that they could find a place for her to work either within the pharmacy department or another role and discussions are ongoing

The respondent submitted that the hospital pharmacy is a large department employing 25 pharmacists and 18 pharmacy technicians. The pharmacy department is responsible for providing drugs and medications to the 54 medical specialities for both public and private patients in the hospital.   The services include not only supplying medication to for use in the hospital, but also associated aspects of medicine goverence, to ensure that medicines use throughout the hospital is delivered in a safe and cost effective manner. Pharmacy is a highly regulated area of the hospital’s activity.

The dispensary is an operating unit within the pharmacy department and is responsible for the procurement and supply of medication to the hospital.   The complainant who is a pharmacy technician works in the dispensary. She works in the MDA room which derives its name for the Misuse of Drugs Act, 1977. She had been responsible for maintaining a register of controlled drugs as defined under the legislation. The use of controlled drugs is governed by Regulations made pursuant to the MDA Act, 1977. The Regulations govern how controlled drugs are stored, produced, supplied and prescribed. It also provides that a register of controlled drugs (the MDA Register) must be maintained in the pharmacy department. The register must contain very specific records and details about the controlled drugs as prescribed within the Regulations. Entries in the register must be chronological sequence and recorded in a manner.

The complainant was assigned the task of completing the MDA Register because it is mainly desk based.   The hospital’s chief pharmacist CP has overall responsibility for ensuring that the pharmacy is in compliance with its statutory obligations under the MDA. A failure to account for any controlled drug exposes the hospital to the accusation that the drug was not used for its intended purpose, thereby exposing the pharmacy and its staff to regulatory and potentially criminal investigations. The complainant’s role in completing the register is an important assurance mechanism for the hospital as well as being a regulatory requirement and it is important therefore that it is appropriately completed and maintained.

In September 2014 a new chief pharmacist was appointed following the retirement of the previous incumbent. She implemented a number of changes within the department with a view to ensuring better compliance with legislation, good clinical practice and better value for money in the provision of pharmacy services. There were a lot of issues with the 4 MDA registers and it appeared that they were not in compliance with the legislation.

The CP stated that each pharmacy must have a licensed superintendent pharmacist and she was the nominated person for the pharmacy department and responsible for all regulatory matters within the department. She said in evidence that after her appointment she conducted a review of the department and the registers and concluded that the registers were not in compliance with the requirements of the legislation as pages were torn from the books, sellotape and correction fluid was used.   She believed that there were regulatory issues which could impact on her as chief pharmacist. In consultation with her manager, CP decided to replace the 4 A4 registers with one bigger register. The new register had 4 different sections to record the particulars of the controlled drugs as required by the legislation.

CP said that she spoke to the complainant about the introduction of the new register. She mentioned that one register might be too heavy to lift due to her disability but she agreed to give it a try. The new register was introduced in late December 2015 and the complainant transferred the balances from the old registers to it.

In or around August 2015 and before the new register was introduced an ergonomic risk assessment of the MDA room (the complainant’s office) was carried out to ensure that the workstation was adopted to accommodate the complainant’s needs. As a result, the office was cleared of any objects, a new L shaped corner desk was installed with new shelving and a raised computer screen was installed on the desk. The new register would remain in situ on the other end of the desk and there was no need for the complainant to lift it.

The complainant started using the new register in February 2017. The complainant was out sick for 2 weeks in April 2016 with an acute musculoskeletal problem and a further 2 weeks due to a surgical procedure. On the complainant’s return to work on the 11th of May 2016 CP said that she conducted a back to work interview with her which is the standard procedures under the sick leave arrangements.   CP contacted OH about reviewing the complainant’s work space. The complainant had a meeting with OH and a report was provided to CP. The complainant was of the view that the changes to her work and an increase in repetitive work such as writing has led to an exacerbation of her disability and musculoskeletal related problems. CP said that she spoke to OH to find out what further she could do to assist the complainant and it was suggested she could change her days.

CP said that the complainant came to her on the 22nd of June 2016 in an upset state. She disclosed she had difficulties with her hand and that she was attending the hand clinic. She complained about the weight of the new register and said that she needed help with the boxes of medicine due for destruction. CP said that she reassured the complainant that she would support her and arranged with the other staff that she would get help with the boxes.   She agreed to change her working days to 3 non-consecutive days per week. CP also arranged for the complainant to attend an ergonomics consultant to have an assessment carried out.

CP said that she received the report from the ergonomics consultant recommending a new chair, a document holder and a plinth to assist the complainant. Following approval from OH the equipment was ordered in August 2016. There was a slight delay in ordering the equipment because OH had some reservations about whether the equipment would fully address the complainant’s needs.   The new equipment was ordered and it arrived in October 2017 while the complainant was on sick leave and it was put in storage pending her return.

The complainant went out sick on the 4th of October 2016. CP telephoned her in November as managers are expected to manage absences and ring employees who are out on sick leave. She enquired if she was returning to the pharmacy department as she had learned that she was interested in a job in the laboratory. The complainant said that she wanted to return to work in the pharmacy. The complainant emailed her following their telephone call stating that the new MDA register was the cause of the repetitive strain injury and the issues which she had already raised in relation to this would have to be addressed before she could return to her role in the MDA room.

She met the complainant on the 22nd December 2016. It was agreed with her that she would return to work on reduced hours in January 2017. OH recommended a return to work on a phased basis. It was also agreed that the complainant would no longer work on the MDA register, but that she could do the computer parts of her job. CP held a back to working meeting with her at which the new arrangements were outlined. CP said she later learned that the complainant was doing the prepacking part of the job and she was concerned about its impact on the complainant’s hand injury. She raised it with OH who assured her that the complainant could do this job.

The complainant had exhausted her sick leave pay entitlement and she was not paid for January.   She lodged a complaint under the grievance procedures about the introduction the new register and the change in the standard operating procedures, sick leave pay, her hours and the reduction in her pay. Two investigations meetings took place at which CP and the complainant attended. The matters were referred to mediation as it was felt a less formal forum could resolve the issues. The complainant withdrew from the mediation.

The complainant was seeking an increase in her hours and CP said that she was in consultation with OH about it but the complainant refused to meet her with her about it.   She said that she wanted to be represented by her union. CP said she was also trying to find new office space for the complainant and agreeing the tasks she could carry out. A list of tasks was drawn up which another member of staff considered would be sufficient to return the complainant to 22.2 hours per week. CP said that she was at all times trying to accommodate the complainant with the tasks which would be suitable to her. She denies that she ignored her or that her tome was in any way offensive towards her.

A new office space was sourced for the complainant and new software was installed on her computer but the office space was deemed unsuitable by Health and Safety. CP was informed in October that the complainant was going on administrative leave.

The respondent’s legal submission referred me to Section 16(1) of the Employment Equality Acts which provides that the respondent is required to provide appropriate measures to enable a person with a disability to carry out their tasks. Section 16 also provides a complete defence to acclaim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant was not fully capable of performing the duties for which she or he were employed. I was referred to the Labour Court case of Humphrey’s v Westwood Fitness Club [2004] E.L.R. 296, 300 which held that before coming to that view, the employer would “normally be required to make adequate enquires so as to establish fully factual position in relation to the employee’s capacity.”

The respondent is of the view that it has made frequent enquires so as to establish fully the factual position in relation to the complainant’s capacity. Furthermore, it was submitted that the complainant herself stated that she could no longer undertake the tasks associated with the new MDA register because of her medical condition.

The respondent said that it wants to make it clear that it is not making the case that the complainant’s disability is such that she cannot be maintained in the respondent’s employment. It is the respondents earnest desire to keep her in employment. It submits that the complainant has placed significant emphasis on the impact of the new register, whereas it contends that the underlying issue is that the volume of writing associated with the increased usage of controlled drugs in the hospital has increased the handwriting. The respondent is unable to alleviate the handwriting obligations imposed by the regulations applicable to controlled drugs, but it has made significant efforts to accommodate the complainant in completing the task in a manner that is not injurious to her health.

I was also referred to the judgment in the case of Nano Nagle v Daly [2018] IECA 11 concerning reasonable accommodation where the Court overturned the High Court and the Labour Court application of section 16(1) of the Act. In that case the respondent dismissed Ms. Daly from the position of an SNA after she became disabled and no longer had the capacity to carry out the duties associated with her job. The Court of Appeal stated:

"This section does envisage some distribution of tasks, just as it also specifies time adjustments, as HK Denmark found was the case with the Directive. Adjustment to access and workplace hours and tasks does not mean removing all the things the person is unable to perform; in general, it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange.  That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails.  On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal.  The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective.  The fundamental proviso in section 16(1) must be respected."  

The Judge went on to firmly reject the Labour Court’s contention that there was an obligation under the Act to create a new position of “Floating SNA” for Ms. Daly.  

The respondent submitted that it never contemplated dismissing the complainant. The respondent submitted that it already given the complainant reasonable accommodation in excess of what the law requires by agreeing to assign her almost exclusively to non-ambulatory tasks when she was no longer able to carry out her ward duties. The essential functions of a pharmacy technician requires a high degree of physical activity, a high level of manual dexterity and fine motor skills.

The nature of the complainant’s medical condition is such that there are substantial limitations in her mobility and her capacity to undertake the essential functions of a pharmacy technician role without the risk of injury for example repetitive strain injury.

The respondent rejects the contention that it failed to provide her with reasonable accommodation. It has sought other roles for her as outlined above but the complainant wants to remain within the pharmacy department. The respondent continues to engage with her to provide her with an alternative set of desk based duties within the pharmacy department and she has been assessed and will be provided with further assistive equipment.

I must now consider the complainant's claim that the respondent directly discriminated against her on the disability ground in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts in contravention of section 8 of the Acts. The complainant alleges that the respondent failed to provide her with appropriate measures in accordance with Section 16 of the Acts. In considering the complaint, I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the disability ground. It is only when he has discharged this burden that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

"(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to her or him, it is for the respondent to prove the contrary."

Section 6(1) of the Employment Equality Acts provides:

"..... discrimination shall be taken to occur - a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the 'discriminatory grounds')"

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),”

and

Section 8. -- (1) ” In relation to --

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,”

Section 8(6)(c) provides

“without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The definition of disability in Section 2(1) of the Acts is as follows:

''disability'' means --

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning

differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

The complainant has a disability within the meaning of the Acts. The complainant's case is that the respondent changed work practices and introduced a new system for recording of controlled drugs under the MDA Acts resulting in the replacement of 4 A4 registers to one larger and heavier register and new work practices were also introduced. This led to an increase in the amount of writing she had to do and together with the heavy register led to a shoulder and neck injury requiring intensive physiotherapy. She further alleges that following an assessment by an ergonomic consultant, the respondent failed to put the recommended equipment in place. The respondent states that there is a statutory obligation on it as a pharmacy in charge of controlled drugs to maintain proper MDA register. The new chief pharmacist changed the system to ensure compliance with the MDA legislation as she believed the registers as maintained did not meet the requirements of the Act. The respondent said that measures were put in place to meet the needs of the complainant and significant efforts were made to accommodate her so that she could carry out her work. Therefore, the first matter I must consider is, whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Act.

Section 16 of the Acts provides:

16.—(1) “Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(3) provides

"For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ''appropriate measures'') being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.”

................

(4) In subsection (3) --

''appropriate measures'' in relation to a person with a disability --

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person

might ordinarily or reasonably provide for herself or herself;"

I will now examine whether the complainant was provided with appropriate measures so that she could carry out her work. Before the introduction of the new MDA register, I note that the Chief Pharmacist spoke to the complainant about its introduction and after the complainant complaining about its weight she was referred to OH for an assessment. It was concluded that a new desk was necessary. The introduction of the new register was delayed until the office was revamped and a new desk was installed which would accommodate the register without the need for the complainant to lift it. Shortly after the complainant started using the new register she found that an increase in handwriting caused her to suffer from problems with her shoulder and neck and also caused swelling in her right hand.   I note that the complainant was referred to OH and she was allowed to return to work on reduced hours. She was also referred to an ergonomic consultant and a new equipment to assist the complainant was ordered. I note that the OH doctor following the referral of the complainant before her return to work from sick leave expressed the view that the workload in the pharmacy might be too much for the complainant given her disability and her medical condition and suggested that it might be wise for her to consider alternative positions. In a further report she concluded that her disability impedes her ability to hand write or to do physical or manual handling tasks and recommended that a desk job such as reception telephone and data entry work (not high speed typing) would be suitable work for the complainant.

There is a statutory obligation on the Chief Pharmacist to ensure that the controlled drugs are recorded in an MDA register, in accordance with the strict provisions of the legislation and that the registers are filled in and maintained accordingly. The consolidation of the registers into one larger register for the purposes of the strict compliance with the relevant legislation cannot be construed as discriminatory treatment of the complainant on the disability ground nor can it be construed as a failure to provide her with appropriate measures. I am satisfied that the respondent, on the introduction of the new register, endeavoured to put appropriate measures in place for the complainant to enable her to fill it in, but given the necessary increase in handwriting these measures proved insufficient. I note that the complainant was taken off any handwriting tasks and assigned other administrative roles within the pharmacy department. Furthermore, the complainant was put on administrative leave on full pay so that a new office space could be sourced for her and a determination made of the tasks she could carry out.

In considering the question of appropriate measures, I am guided by the Labour Court determination in the case of Humphrey's v Westwood Fitness Club Det. No. EED037 and which was upheld by the Circuit Court. This was a dismissal case but the test set out by the Labour Court can equally be applied in relation to appropriate measures. The LC stated:

"The nature and extent of the enquires which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition.................

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant's own doctor or an independent doctor where there are concerns in relations to the health of a worker.

In relation to the test which requires the respondent to obtain facts about the complainant's medical condition, I note that the respondent had medical reports from their own OH doctor and the recommendations in these reports were acted upon and the respondent put facilities in place to assist the complainant. However, the complainant was unable to continue with handwriting tasks associated with filling in the MDA register and she was not asked to carry out this task any longer. She was assigned different tasks. I note that Section 16(1) does not require an employer to retain a person in employment if the person cannot continue to undertake the duties attaching to the position. However, I note that the respondent had no intention of pursuing such a course of action and is willing instead to accommodate the complainant elsewhere and indeed has actively pursued alternative options for her.

For these reasons, I am satisfied that the respondent put appropriate measures in place (by taking her off handwriting tasks and seeking alternative tasks for her) in accordance with Section 16 of the Employment Equality Act, 1998. I find therefore, that the complainant has failed to establish a prima facie case of discriminatory treatment on the disability ground.

The complainant alleges that she was victimised contrary to the Employment Equality Acts, 1998.   She said that there was a lot of uncertainty for her in the workplace after the new register was introduced. Nothing changed for her in the workplace and she was constantly being asked to leave the MDA room so that another pharmacy technician could write up the register. She said that the respondent put her on reduced and she was not consulted.

The respondent denies that the complainant was victimised contrary to section 74(1) of the EE Acts.

It was submitted that the complainant is required, in accordance with Section 85A of the Act, to demonstrate that there is a causal connection between the taking of proceedings and the adverse treatment to which she alleges she was subjected to. It was submitted that the relevant test was prescribed by the Labour Court in the case of Tony and Guy Blackrock v Paul O’Neill [2010] ELR1 as follows:

“Where there is more than one causal factor in the chain of events leading to the detriment, the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he/she would not have suffered the detriment…”

The respondent denies that it subjected the complainant to any adverse treatment as a reaction to any issues defined from (a) to (g) in section 74(1) of the Act. It was submitted that the respondent continued to engage with the complainant and her representative since she made her complaint of discrimination. It has discussed alternative roles and duties with her and will continue to do so and no basis for a claim of victimisation has been made out by the complainant.

The complainant claims that she was victimised. Section 74(1) of the Act states:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The complainant set out the instances where she alleges she was victimised, the introduction of the new MDA register, putting her on reduced hours and being asked to leave the office so that another person could fill in the register. In order for the complainant to establish victimisation under the EE Act, she must establish that she was subjected to adverse treatment as a reaction to any of the occurrences set out at (a) to (g) above. I note that the complainant raised discriminatory treatment on the disability ground in a letter to the respondent dated 16th February 2017 and she referred her complaint to the WRC on the 11th June 2017. I have examined the period from which she first raised a discriminatory treatment complaint and I cannot find any incidents of adverse treatment of her because of these referrals.

The introduction of the new register was for the purposes of ensuring compliance with statutory legal obligations as outlined above. Its introduction following the complainant’s complaint about its weight and its impact her disability, cannot be construed as adverse treatment.   I note it was already in operation at the time she alleged its introduction was discriminatory treatment and victimisation could not have occurred prior to the complaint of discrimination.

The other matters complained about also cannot be considered victimisation under the Act. The complainant was put on reduced hours by the respondent on medical advice and as a way of easing her back to work following her sick leave. Furthermore, as she could no longer carry out the register task another employee had to do this task and the complainant had to evacuate the office. I note that the respondent was actively seeking another office in consultation with the complainant and she was put on administrative leave with full pay until the matter could be sorted. I am satisfied therefore, that the complainant was not adversely treated by the respondent as a consequence of taking a complaint of discrimination.

I find therefore that the complainant has failed to establish a prima facie case of victimisation contrary to the terms of the Act.

The complainant submitted that she was harassed contrary to the EE Act. The complainant said that she did not find her boss CP supportive of her situation. When she was on sick leave after suffering an injury from the heavy register and the increased writing CP telephoned her to say she could not accommodate her in the department. She alleged that CP telephoned her a number of times while she was on sick leave and she did not like the tone of these conversations. She said that she found this very hurtful as she had worked in the pharmacy department for 20 years without any difficulty. She said that when she could not manage the new register and the increase in handwriting she drew up a list of alternative tasks which she could carry out and gave them to CP who failed to give then any consideration. The complainant said that she was carrying out the task of prepacking and she was approached by CP and spoken to in such a manner that she believed that she had done something wrong. CP questioned her about the prepacking and the amount of hand manipulation required to carry out the task.

The complainant said that she referred a formal grievance, about a number of issues including the changes in the work practices and the impact on her health, under the grievance procedures on the 16th of February 2017. The complainant said that called to a meeting by CP to discuss office tasks.   The complainant told her that she could not attend as she would need somebody to accompany her and CP shouted at her saying that she was going to report her to HR for refusing to speak to her and she then stormed off. She said that other staff in the vicinity noticed what happened and asked her if she was OK.

The respondent denied that the complainant was harassed contrary to the EE Acts. CP said that she telephoned the complainant while she was on sick leave as she was required to do to find out about her return to work and to manage sick leave. She also held back to work interviews following the complainants sick leave. She denied that her tone on the telephone was unacceptable or that she told the complainant that there was no place for her in the pharmacy department. The complainant had expressed an interest in a job in the laboratory and it was in that context she asked her about returning to work in the pharmacy. CP said she investigated this job and established that it would not suit the complainant.

CP said at all times she was acting on the reports from the OH doctor and was in constant consultation with her in relation to tasks the complainant could carry out given her disability. It was in this context and at the request of OH that she wanted to meet the complainant in March 2017 and she was taken aback when the complainant refused to meet her without her union representative. She denies that she shouted at her or that she stormed off. A list of tasks had been identified within the department as suitable for the complainant and she was concerned that some which involved handwriting and prepacking were not suitable given her disability. OH, approved the prepacking as suitable and it was these issues she wanted to discuss with the complainant.

CP denied that she ever harassed the complainant.

The respondent solicitor submitted that the definition of harassment in the Dignity of Work Policy provides as follows:

“Harassment (other than sexual harassment) is any form of unwanted conduct related to any of the discriminatory grounds covered by the EE Acts. These grounds are:

……. Disability

Harassment is defined in the Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a persons a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The unwanted conduct may include acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. Harassment is inappropriate behaviour based on the relevant characteristic of the employee such as race, religion, age or any of the other grounds covered by the Act. Inappropriate behaviour that is not linked to one of the nine discriminatory grounds is not covered by this definition. Harassment may be targeted at one employee or a group of employees. Harassment may consist of a single incident or repeated inappropriate behaviour.”

The respondent submitted that having regard to and applying the provisions of the above policy and Section 14 of the EE Acts the complainant has not established that she was harassed. They deny that the complainant was harassed and it contends that no prima facie case of harassment has been advanced.

Harassment is defined in Section 14A of the Employment Equality Act, 1998 as follows:

“(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

….

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The complainant submits that she was harassed on the disability ground in relation to her conditions of employment. I have examined the incidents submitted by the complainant which she submits are harassment contrary to the Act. The conversations and interactions CP had with the complainant as outlined above do not constitute harassment of her on the disability ground within the meaning of the Act. I am satisfied that the Chief Pharmacist was at all times endeavouring, in consultation with OH and HR, to accommodate the complainant within the pharmacy department with new tasks and duties suitable to her needs, when she could no longer perform handwriting duties because of her disability. I find therefore that the complainant has failed to establish a prima facie case of harassment on the disability ground.

I find that the complainant has failed to establish discriminatory treatment on the disability ground contrary to the Act.

I find that the complainant has failed to establish victimisation contrary to Section 74(1) of the Act.

I find that the complainant was not harassed within the meaning of Section 14A of the Act.

The complainant submitted that she was bullied by the Chief Pharmacist. She said that CP isolated her, was aggressive and intimidating towards her.

In addition to the introduction of the new heavy register new procedures were introduced by CP without any consultation with her and an increase in handwriting. As a result, she suffered from an injury to her shoulder and neck and a hand injury from the increased writing. As a result, she was on intermittent sick leave and had to attend physiotherapy and the hand clinic. While she was on sick leave she received aggressive and intimidating phone calls from CP. She said that she raised the issues about the change in work practices with CP and she refused to address them.

She said that she felt isolated and had to leave the MDA room when the other pharmacy technician was filling in the register.

The complainant said that while she was on sick leave CP telephoned saying she needed to manage her sick leave and asking her if she wanted to come back to work in the pharmacy.   She said that she did not like the tone of the conversation and emailed CP later to say that she wished to continue to work in the pharmacy.

On her return to work her hours were reduced on the recommendation of OH and she was not paid as she had exhausted her sick leave payments.

The complainant raised the issues with the respondent through the grievance procedures but there has been no satisfactory outcome.

The respondent denies that the complainant was bullied. CP denied that she ever excluded the complainant and she felt that she had easy communications with her. She telephoned the complainant while she was on sick leave to enquire about her wellbeing and was required to manage sick leave as part of the management attendance policy. She said that the MDA register had to be filled in handwriting and she had no control over the volume of work which came into the pharmacy. She tried to facilitate the complainant regarding the MDA work and allowed her to work 3 non-consecutive days. When it became clear that the complainant could no longer to the MDA work a list of additional tasks she could do was drawn up but there was no suitable office space for her outside the MDA room. It was not the intention to isolate the complainant but the MDA register had to be filled in by another person in the MDA room.  

The respondent submitted that the matters complained about do not constitute bullying as set out in the SI no. 17/202 The Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in The Workplace) (Declaration) Order 2002 which states as follows:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

It was submitted that none of the behaviours alleged by the complainant constitute bullying for the purposes of the definition. I was referred to the Supreme Court judgment in the case of Úna Ruffley v Board of Management of St. Anne’s School [2017] IESC 22, where the Court in referring to the above definition noted, that the drafter had:

“chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive, it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”

The respondent’s representative submitted that there was no doubt that the complainant felt aggrieved and upset in relation to the workplace and the changes made within the pharmacy department, but she was not bullied or singled out for unfair treatment. She was not subjected to repeated inappropriate behaviour designed to undermine her dignity at work.

I am satisfied that the complainant was not bullied within the meaning of the above definition of bullying contained in the Code of Practice. There were no repeated inappropriate behaviour directed at the complainant by CP or any of the staff of the respondent.

A new MDA register was introduced and work practices were changed by the Chief Pharmacist as she had a statutory responsibility to ensure that the controlled drug register complied with the requirements of the MDA legislation. The chief pharmacist has an onerous responsibility in that regard and the changes implemented cannot be regarded as bullying. It is unfortunate that these changes and the increase in work and handwriting associated with these changes impacted on the complainant’s disability and she was no longer medical fit to do this task. I note that other tasks that the complainant could carry out safely were identified resulting in the need to find an alternative office space for her as another staff member was carrying out the registry work in the MDA room. It is a fact that the complainant had to vacate the MDA room for this staff member, however this does not constitute bullying.

I note that the complainant is on administrative leave with full pay until this office is fitted out for her.

I recommend that the respondent finalise the fitting out of the new office space and to install appropriate facilities in consultation with the complainant to suit her needs in the workplace. I also recommend that of the parties work together to agree on the new tasks. Another issue raised by the complainant concerned the disabled car space, and I recommend that the respondent provide a dedicated space for her as near as possible to the most convenient door for her.

I recommend that the respondent finalise the fitting out of the new office space and to install appropriate facilities in consultation with the complainant to suit her needs in the workplace. I also recommend that of the parties work together to agree on the new tasks.

I recommend that the respondent provide a dedicated space for her as near as possible to the most convenient door for her.

The complainant submits that there was a breach in the terms and conditions of her employment.   She said that she has been employed by the respondent since October 1977 and the respondent unilaterally changed her terms and conditions of employment without written prior notification. On her return to work in January 2017 after a period of sick leave she was not paid for January and her hours were reduced without consultation. Because of the reduced hours there was a shortage in her pay of €6,287 for the months January to May 2017.

The respondent submitted that the complainant was on sick leave and her entitlement to pay was exhausted and she was not entitled to pay and based on medical advice she was put on reduced hours to facilitate her recovery.

The respondent denies there was any breach of the complainant’s terms and conditions of employment and submit that her complaint is misconceived. Her contractual hours are 22.2 per week and these contract hours have not been altered. The respondent provided the complainant with a statement of her terms and conditions of employment to comply with the Act at the time of her appointment to the post. It submitted that any changes which were made to her remuneration occurred not as a result of any change to her contract, but because she had exhausted her sick leave entitlement.

It was further submitted that the complainant is not entitled to recover lost wages under the 1994 Act.

The complainant submits that her terms and conditions of employment were changed and she was not notified of the change in accordance with the terms of the 1994 Act.

Section 5.—(1) of the Terms of Employment (Information) Act, 1994 provides:

“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or”

I am satisfied, that there was no permanent change to any of the particulars in the complainant’s terms and conditions of employment, and therefore there was no requirement under Section 5 to notify her of any such change. Her hours of work were temporarily reduced so that she could ease herself back into employment after a period of sick leave. Regarding the reduction in salary, the complainant had exhausted her sick leave entitlement and the temporary reduction in her work hours also reduced her salary. I find that this complaint is not well founded.

I find that the complaint under the Terms of Employment (Information) Act is not well founded.

Employment Equality Act, 1998, Section 16 reasonable accommodation, Section 14 A harassment, Section 74 victimisation, Terms of Employment (Information) Act, Industrial Relations Act bullying.