Complainant

Respondent

Anonymised Parties

A Support Pharmacist

A Pharmacy Chain

Representatives

Niamh McGowan BL instructed by Hilary O'Connor Solicitor of Maurice Leahy Wade & Co, Solicitors

Fiona Egan of Peninsula Business Services.

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-00029492-001

05/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029492-002

05/07/2019

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

CA-00029492-003

05/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029492-004

05/07/2019

The issues in contention concern the alleged Discriminatory Dismissal under the Employment Equality Act, 1998 of a Pharmacist by a Pharmacy Chain. A number of related complaints are also included.

1:1       Equality Case - CA 00029492-001

The Complainant, a lady with child care commitments, commenced employment with the Respondent in November 2018. It was her understanding that she would be undertaking a Part Time “Job Sharing” role. By agreement with the Respondent, to help out in an unexpected difficulty, she worked an initial full time period until the 14th January 2019 when she took up her Part Time position at a North City Branch of the Chain. Shortly afterwards the Complainant was asked by one of the Co-Owners (Mrs B) of the Respondent business to change her hours to full time on Tuesday and Friday. The Co-Owner was her “Job Share” partner. The Complainant could not facilitate this but offered to work full time on Tuesdays if her weekend commitments were reduced. The Respondent undertook to look at this suggestion but came back in early April with an offer of a Transfer to the Dublin Airport Branch of the chain - from 04:00 to 12:30 hrs. From a child care point of view these hours were impossible and the suggestion was declined. Later in the month of April, the 25th, the principal Co-Owner, Mr. A, met with the Complainant. He informed her that the Part Time role had not worked out as he had hoped, and it was necessary to hire a full time Pharmacist – co incidentally a male. Her employment was ended by the Respondent on the 25th April with the last day of service being the 31st May 2019.

The Complainant maintained that no realistic effort was made to facilitate her Part Time Hours position and for example no effort was made to find another job share partner. Accordingly, the Complainant felt that she had been grossly discriminated against by virtue of her Gender and Family status.

1:2       Minimum Notice & Terms of Employment Act, 1973 CA-00029492-002

This complaint was withdrawn

1:3       Terms of Employment (Information) Act, 1994     CA – 00029492-003

The Complainant did not receive a Contract of Employment or Statement of Terms and Conditions within two months of commencing employment. When a Contract was furnished, in mid-April 2019, it contained a Notice Clause completely at variance with the norms of the Retail Pharmacy business.

1:4       Payment of Wages Act, 1991 CA: - 00000029492-004

The Industry norm is an eight week notice period – the Respondent offered only a One Week period.

On discussion at the Hearing this complaint was also withdrawn.

1:5       General

In relation to the above Complaint’s extensive case law was referenced and comprehensive Oral evidence given.

2:1       Equality Case - CA 00029492-001

The nature of the Retail Pharmacy business is dynamic daily. Job Sharing involving daily Handovers between Pharmacists does not work out. It is not in the best interests of Patient care or the efficient and crucially safe running of a busy Pharmacy.

The Respondent, probably by his own admission, had not fully realised this when he offered the position to the Complainant.

The arrangement entered into with the Complainant had simply not proved possible to operate and it was necessary to back track and employ a full-time pharmacist. The Gender of the Full timer was irrelevant. The business had an almost 80% female workforce and gender or family discrimination simply did not happen.

As a business they had sought to have discussions with the Complainant regarding how best her needs could be accommodated, work in other Branches were suggested and varying patterns of hours suggested.

There was no intent to Discriminate, in any way. A daily Part Time position, once experienced in early 2019, simply did not fit the business needs of a busy Pharmacy. It was accepted that they had tried to make it work but it was logistically and medically/clinically impossible and unsafe.

2:2       Terms of Employment (Information) Act, 1994     CA – 00029492-003

It was accepted that there had been a breach of the Act in this case, but it was purely technical, and no detriment had flowed to the Complainant. Case law supporting this point was referenced.

3:1       The Employment Equality Act, 1998 complaint – CA - 00029492-001

The Law in Employment Equality cases - Employment Equality Act,1998

Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents

In an employment Equality case such as here it is necessary to firstly establish certain Legal issues -these being

1.      In the Complainant cover by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to bring a claim?

2.      Was she discriminated against?

3.      Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?

4.      Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.

There is significant case law in support of ther above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.

3:2     Was the Complainant covered by the Discrimination provisions of the Act?

In her complaint form she pointed to Gender and Family Status grounds.

Clearly, she was a female and her Family status position as being a mother with children was never contested. Her claim was that she had been engaged to do Part Time work and this was allegedly discriminatorily removed from her.

Reviewing the evidence presented I think it fair to say that she satisfies these Discrimination requirements.

3:3       Was she Discriminated against?

Her employment was terminated on the grounds that her Part Time role could not be accommodated by the Respondent. Whether or not this was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.

3:4       The Burden of Proof.

The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer.

In this case the employment was ended by the Employer. The Respondent employer maintained that this was for “Objective Reasons” due to the nature of the Pharmacy business. Split or Shared Shifts did not work for a local style Pharmacy. The example was given of a patient presenting at 10:00 in the morning with a complicated prescription. Details would be taken by the Pharmacist and further contact would be required later in the day. If there was a changeover in Pharmacist during the day serious complications could arise from a Patient Safety point of view. It was a risk a very busy Pharmacy could not take and accordingly after an experiment with Part Time hours the view was that they had to revert to full time hours per shift.

They had no issue with the Complainant doing a pattern of full days spread over a week or a fortnight. They were completely flexible on this question but the Complainant had been difficult. She had effectively insisted on her part time working pattern as initially set out.

The Respondent defence was one of Objective Justification, i.e. there was a real an objective reason, for ending the Part Time hours arrangement.

3:5       The Objective Justification Argument and Part Time working.

This is not as straight forward as it might appear in this case

This is demonstrated by Bank of Ireland Group v Morgan [EDA 096] where the Labour Court held that it:

“… would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self-evident that such facilities can only be made available within the exigencies of the business.”

In this case is there a sustainable argument that Full time shifts are an “Exigency” of the Respondent’s Retail Pharmacy business.?

Local issues came to the fore as well here – the other Lady who was sharing the work – the Co-Owner, Mrs. B, it was alleged, apparently soon found the arrangement cumbersome as she was not used to having fixed, albeit pat time hours of attendance.

During the Hearing the issue of Part Time or Shared Pharmacist shifts in other large Retail Pharmacy chains was discussed. A prominent UK Chain, operating in many Dublin locations, was mentioned.

It was speculated that with their well know opening hours it would be impossible to have the same pharmacist there all day. Hand overs between Pharmacists would have to happen. The Respondent maintained that their Pharmacies were on the main streets of suburban Dublin. They were much more family /patient focused, offering local care to long standing patients, that the multinational chains based in big Retail Centres.

3:6         Adjudicator conclusions

In the normal run of Equality cases this case should lead to a direct finding of Discrimination against a lady in a Part Time Hours situation.

The question here is complicated by the Objective grounds defence.

On balance, having reviewed the evidence, and after careful reflection I had to come to the view that the Respondent failed to adequately ground his defence.

Part Time Hours had been offered and were then clearly withdrawn by the ending of the employment. There appeared to have been no real evidence of any significant efforts to see how the Daily Part Time Pharmacist position could possibly have been made to work other than by a pattern of flexible but full-time days. The Oral evidence pointed to the Respondent being well intentioned but unable to find a solution.

The Objective defence of the need for Full Shift daily attendance in a Pharmacy simply was not demonstrated sufficiently or in any realistic sustainable fashion.

Accordingly, there is no doubt but that the Complainant was discriminated against, on the gender grounds, the family status grounds, on the conditions of employment grounds and by a Discriminatory Dismissal, under the terms of the Employment Equality Act,1988.

Appropriate Redress will be consideed in Section 4 of this Adjudication below.

3:7       Terms of Employment (Information) Act, 1994     CA – 00029492-003

It was accepted that a Technical breach of this Act had occurred – the statement of Terms and Condition of Employment was not provided within Two Months of the commencement of Employment.