Complainant

Respondent

Parties

Kiera Dunne Murphy

Jabez Limited

Representatives

Hannah Cahill, BL

David Gaffney, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00035225-003

13/03/2020

The respondent runs a number of pharmacies around Ireland and the complainant commenced as an intern in their Passage West store on May 20th 2019.  The internship was arranged through a youth employment scheme run by the Department of Social Protection and was for three months.  On August 19th, she was offered a permanent job, subject to nine months’ probation.  She was paid €10 per hour and she worked 40 hours per week.

On October 17th 2019, the complainant attended a probation review meeting with one of the pharmacists, Adrian Fitzmaurice, at the end of which Mr Fitzmaurice indicated that improvements were required concerning her attitude to the manager and pharmacist, her accuracy, responsibility, accountability, initiative and drive.  Three days later, the complainant informed told another pharmacist in the Passage West shop that she was pregnant.

On October 30th, the complainant attended a probation review meeting with the HR manager, Mark Keegan, and Adrian Fitzmaurice, who had carried out the first review meeting on October 17th.  For reasons related to mistakes she made on the drug delivery system for nursing home residents, known as “the Tosho machine,” the complainant was told that she had not passed her probation and her employment was terminated.  She was too anxious to attend work the following day and she did not return to work, having been certified as unfit until December 9th 2019.

The complainant believes that she was dismissed because of her pregnancy and she seeks compensation in accordance with section 82(4) of the Employment Equality Act 1998.  It is the respondent’s position that the complainant was dismissed for reasons related to her performance and that no one knew she was pregnant at the time of her dismissal. 

Summary of the Written Submission

During her internship between May and August 2019, one of the pharmacists in the store, Ms Rebecca Gregan acted as a mentor to the complainant.  The complainant said that Ms Gregan indicated that her work on the Tosho machine and on all aspects of her work in the pharmacy was satisfactory.  On the strength of her internship, she was offered a permanent job.

The complainant and two other employees who were not qualified pharmacists were trained on the Tosho machine.  In her submission, Ms Cahill said that the complainant was given a general overview by the machine installer but that her training was scant and informal.  She said that the complainant was instructed to watch her colleagues working on the machine and to ask questions.  Her duties on the machine were to fill cannisters with drugs, to complete patient orders issued by the pharmacy technicians, to order medication, to clean the machine and to change the ink and paper for the individual pouches.

In her submission, Ms Cahill said that most of the complainant’s time was spent on general duties, such as dealing with customers, ordering stock and keeping the displays clean and in order.  She also carried out stock control, answered the telephone and cleaned the pharmacy premises.

In September 2019, the respondent’s stock manager visited the store in Passage West and suggested that the complainant should spend more of her time working at the counter on sales and assisting customers.  The manager proposed that the complainant should attend a sales course in March 2020.

On October 7th 2019, the area manager, Ms Lorraine Ireland, visited the store and instructed the staff not to order drugs directly from the United Drug website.  On October 14th, when this manager returned to the store, the complainant had the United Drug website open along with the correct website for ordering drugs.  The complainant said that she was checking availability before she ordered products through the standard website.  The complainant did not consider this instruction as a criticism or a warning.

On October 17th, the complainant attended a probation review meeting with Mr Fitzmaurice.  It is her view that Mr Fitzmaurice was not the appropriate person to carry out her review, as he was new to the store, having joined in September.  At the meeting, the complainant told Mr Fitzmaurice that she had not had an induction, despite having commenced in her role on August 19th.

On the review document, the complainant said that there was a mismatch between her perception of how she was getting on compared to Mr Fitzmaurice’s view.  Mr Fitzmaurice noted that the complainant was exceptional in terms of her attendance, her attitude to co-workers and her flexibility.  She met expectations regarding her appearance, conduct, communication skills, health and safety, mobility and speed.  Mr Fitzmaurice said that she needed to better understand the role of the pharmacist.  He said that she needed to demonstrate consistency regarding her performance and that she needed to take ownership of tasks.  Finally, he said that she needed to recognise what work needed to be done.  Mr Fitzmaurice conceded that there were times when the complainant was pulled between jobs because of the conflicting priorities of the two pharmacists and he acknowledged that the inconsistencies that emerged was an outcome from these conflicts.

The review document also set out next steps and objectives, which were summarised as doing the same task every time to the same standard and taking action to get work done, such as putting away product when it is delivered to the store.  Mr Fitzmaurice signed off the document saying, “Improvement needed to meet standard required.  Employee was very receptive to the issues discussed and seems to have taken feedback in a positive manner.”  Following the meeting, Mr Fitzmaurice gave the complainant a list of the things that she needed to do.  The complainant claims that, because the list was on a scrap of paper, and because of the relatively casual approach to her review meeting, she did not think that her job was at risk.

Three days after her probation review meeting, the complainant told the other pharmacist, Ms Rebecca Gregan, that she was pregnant.  She claims that Mr Fitzmaurice found out the next day, arising from “banter” in the shop between the complainant and her colleagues.

In her submission, the complainant said that, on October 29th, the HR manager, Mr Mark Keegan asked her to meet him the next day for a chat.  Later that day, Mr Keegan sent the complainant an email with a letter attached indicating the issues to be discussed at the chat: 

§    Ordering medication through the United Drug website;

§    Failure to carry out the role of Tosho operator to the level expected;

§    Carelessness causing potential medication errors;

§    Failure to follow management instructions.

Mr Keegan told the complainant that she had the right to be accompanied at the meeting, but in her submission, Ms Cahill said that the complainant had no time to find someone to accompany her because she did not read Mr Keegan’s email until the day of the meeting itself.  Mr Keegan attached four documents to the email:

1.               A copy of an email on Saturday, October 5th from Adrian Fitzmaurice to the managing director of the company, Ms Adrienne Stack, in which Mr Fitzmaurice set out his concerns about mistakes that the complainant made on the Tosho machine on Friday, October 4th.

2.              A copy of an email on Tuesday, October 15th from Ms Ireland to Mr Keegan, in which she said that she had to speak to the complainant about her instruction not to order items from United Drug’s website.

3.              A copy of the probation review form dated October 17th 2019.

4.              A copy of an email from Mr Fitzmaurice to Mr Keegan dated Tuesday, October 29th in which Mr Fitzmaurice listed his ongoing concerns about the complainant’s performance.

At the meeting on October 30th, Mr Fitzmaurice attended with Mr Keegan.  The complainant didn’t ask anyone to accompany her, although she was advised to do so by Mr Fitzmaurice.  Despite the complainant reporting that she felt she was doing well in her job, Mr Keegan told her that she had failed her probation.  She was informed that the respondent had lost a contract with a nursing home due to mistakes she made on the Tosho machine.  This had not been raised previously with the complainant.  Mr Keegan told the complainant that she could stay in her job until the end of the year, but that he couldn’t guarantee this.  He also said that he would help her to find another job but, Ms Cahill said that Mr Keegan couldn’t guarantee this either.

The next day, the complainant sent an email to Mr Keegan, asking to meet him again.  She said that she was a bit in shock the day before, and that she would like a meeting to discuss the allegations regarding her performance that led to her dismissal.  She said that she would like to have someone at the meeting with her.  Mr Keegan told the complainant that he had written to her to confirm that her employment was terminated and he asked her to provide him with a written submission with additional information that would allow him to reconsider the outcome of the meeting the previous day.  He asked her to provide this submission by 5.00pm on Monday, November 4th.

Mr Keegan had written to the complainant on October 31st, confirming that she would be dismissed six weeks later on December 12th.  It was the complainant’s opinion that Mr Keegan had no interest in engaging with her on the issue of a review of the decision to dismiss her.  She had planned to take holidays from November 3rd to 7th.  Before she went on holidays, she wrote to Mr Keegan telling him that she was not satisfied with the decision to terminate her employment and that she would contact him in due course regarding how she wished to proceed.  Due to stress and anxiety, she did not return to work and she sent her employer a medical cert stating that she was too ill to attend work from November 8th to December 9th 2019.

Evidence of the Complainant

In her evidence, the complainant said that she was excited at the prospect of working in the pharmacy, and she thought it could lead to a career in the pharmacy business.  She said that she had worked in TK Max after leaving school and she got the internship through the Department of Social Protection’s Youth Employment Scheme.  She said that she felt that the internship went well.  She said that she did mainly OTC duties.   The person who generally supervised her was Ms Rebecca Gregan, who, the complainant said, seemed happy with her.

The complainant described her duties on the Tosho machine, which is for packing bulk orders of medicines for nursing homes.  A pharmacy technician sends information to the machine, and the complainant said that she had to click on a page to produce the medicines that were ordered.  She said that errors were identified on a small screen at the front of the machine, and they could be fixed manually.  She said that Ms Gregan would usually check the order and sign it off for sending to the nursing home.

The complainant said that she got no formal training on how to use the machine and that “a man from Dublin” came to the shop to show her how to use it.  She worked with a colleague who had more training than her on the machine.

To manage errors on the machine, the complainant said that the managing director, Ms Stack, introduced a logbook.  The purpose was to identify problems and why they happened.  She said that this logbook was not in use when she was working in the Passage West shop.

The complainant described her other work in the shop, and she said that she preferred OTC  work.  She said that this was easier than working on the Tosho machine and that she preferred being “out the front.”  In September 2019, she said that she was advised that she would be sent on a training course in March 2020, to prepare her to do more over-the-counter work.

The complainant described the visit to the shop on October 7th 2019 by Ms Lorraine Ireland, who told the staff not to order from the United Drug website.  On October 14th, Ms Ireland called to the shop again when the complainant was putting through an order.  She had the United Drug website open, but it seems that Ms Ireland assumed that she was ordering stock from United Drug.  The complainant said that she was checking availability.

The complainant described the probation review meeting she had with Mr Fitzmaurice on October 17th.  She said that Mr Fitzmaurice “seemed to think I was doing less of a job than what I thought.”  She said that he gave her three out of four for most things, but he noted that improvements were required in some areas.  Following the meeting, the complainant said that Mr Fitzmaurice wrote out a list of duties that she had to do.  These were related to working at the tills and general upkeep of the shop.

On October 21st, the complainant said that she told Ms Gregan that she was pregnant.  She said Ms Gregan congratulated her and advised her to inform the HR department after she had her first scan at 12 weeks.  The day after she told Ms Gregan, the complainant said that she told her cousin, who works in the shop, that she was pregnant.  She said that others got to know, “from us talking.”  She said that Mr Fitzmaurice heard “through office banter.”  She said that Mr Fitzmaurice asked her if she was messing and he congratulated her.

The complainant said that the HR manager, Mark Keegan phoned her in the shop on October 29th.  He said that he would like to have a chat with her.  The complainant said that Mr Keegan didn’t come to the shop very often, but he didn’t say what the chat was about.  She said that she read Mr Keegan’s email the following day.  It was headed, “probation review” and listed four allegations regarding her performance.  The letter said that she had a right to be accompanied at the meeting.  The complainant showed Ms Gregan the letter and she asked her if she was in trouble.  She said that she didn’t bring anyone to the meeting, because she didn’t think it was serious.  Mr Keegan went through the four allegations and told her that she had failed her probation and that she would be let go.

Regarding the errors made on the Tosho machine on October 4th, the complainant said that Mr Keegan told her that they had lost a contract with a particular nursing home because she made mistakes.  The complainant said that the error with the nursing home order was discussed at her probation review meeting on October 17th.  She said that she fixed this error with help from Ms Gregan and she told Mr Fitzmaurice this.  She said that she doesn’t remember the second error.

Addressing the fact that she was instructed not to order products from the United Drug website, the complainant said that Ms Ireland thought that she was ordering from that website, when she was checking the availability of the product.

At the meeting on October 30th, the complainant said that she can’t remember if she mentioned her pregnancy to Mr Fitzmaurice or Mr Keegan.   She said that Mr Keegan offered to buy her lunch or he gave her the option of going home.  She said that he told her that he would help her to look for another job and that she might be required to stay on at work until December 31st.

The following day, the complainant said that she sent an email to Mr Keegan, asking for another meeting.  He replied, asking her to send him a written submission.  She said that she was going on holidays which had been planned well beforehand and she hadn’t got time to write a submission.  She didn’t go back to work because she was on sick leave.  She said that the dismissal affected her and caused her stress levels to increase.  She had high blood pressure and suffered from anxiety.

Cross-examining of the Complainant

The complainant agreed with Mr Gaffney that she was employed as a Tosho operator.  During her probation, she said that she didn’t work a lot on the Tosho machine, but that she watched others working on it to see how it was done.  She agreed that she was very familiar with how the Tosho machine worked.

At the start of her internship, the complainant said that the man from Dublin who installed the Tosho machine was in the Passage West shop for a few days.  There was also a colleague who was more experienced than her and she asked her questions about how to use the machine.  She said that she often asked Ms Gregan questions, although it was not her job to work the machine.

Mr Gaffney referred to the notes of the probation review meeting that the complainant attended on October 17th.  On the final page of the notes, she wrote, “Willing to work on things discussed.”  Mr Gaffney asked the complainant if she considered contacting the HR department about her review.  She said that she had spoken to HR in the past plenty of times, but that she didn’t speak to anyone in HR about the Tosho machine.  If she had a query about Tosho, she said that she would have spoken to Ms Gregan and if she couldn’t fix it, they would contact the technician from Dublin.

The complainant said that she had a good relationship with Ms Gregan, and that she was always happy with the answers she got from her regarding how to use the Tosho machine.  However, she said that she got no formal training on the machine, and that she got the “bare minimum training” compared to her colleague, who went to Dublin for two or three days to train on the machine.

Mr Gaffney referred to documents in the respondent’s book of papers which list standard operating procedures (SOPs) that the complainant was trained on.  SOP 822 is titled, “Transferring patient data to the Tosho machine” and the complainant has signed that she completed this training.   The complainant asked, “how can you be trained by just reading something?”  She said that she would have liked the same kind of training that her colleague got.  Mr Gaffney reminded the complainant that she was given SOP documents to show her how to work the machine.  Her colleague helped her.  Her manager, Ms Gregan helped her and the technician from Dublin spent a few days in the Passage West pharmacy.  The complainant said that she didn’t think this was formal training.

Mr Gaffney asked the complainant why she didn’t ask for more training.  He said that, by not asking questions, it is presumed that she understood how to work the machine.  The complainant replied that she doesn’t think that what she got was formal training.  Mr Gaffney asked the complainant if she ever mentioned this to anyone.  She said that SOP documents were issued, and if she needed help, she would ask Ms Gregan.

Addressing the outcome of the review of her probation on October 17th, the complainant agreed that the primary function of her job was as a Tosho operator.  She agreed that, if there was a problem with how she worked on the Tosho machine, that this meant that there was a problem with the biggest part of her job.  Referring to the hand-written notes of Mr Fitzmaurice on the probation review document, Mr Gaffney asked the complainant if she thought that there was a difference between how she thought she was doing and how Mr Fitzmaurice thought she was doing.  The complainant replied that the notes show the view of Mr Fitzmaurice.  She said that it was unfair for him to do her probation review because he was only working in the Passage West pharmacy for a week or two and Ms Gregan knew her better.  She said that she would have preferred if Ms Gregan had done her review.

Mr Gaffney went through Mr Fitzmaurice’s comments on the review form.  One of the issues was the complainant’s attitude to the manager and pharmacist.  The complainant said that she only worked with Mr Fitzmaurice for two weeks and that he didn’t know how she worked.  Mr Gaffney reminded the complainant that she reported to Mr Fitzmaurice.

On the review form, there is a column where the employee rates their performance and the manager also provides a rating.  Across 14 performance headings with “5” as the top mark for each one, the complainant gave herself a total score of 61 out of a possible 70 marks, whereas Mr Fitzmaurice gave her a score of 40.  Mr Gaffney said that this rating has nothing to do with the complainant’s pregnancy, because Mr Fitzmaurice did not know that the complainant was pregnant.  Mr Gaffney said that, even if Mr Fitzmaurice didn’t like the complainant and if she had a better relationship with Ms Gregan, this has nothing to do with her being pregnant.

The complainant said that she thinks Mr Fitzmaurice gave her a low score because he didn’t work with her for long.  She said that she asked Mr Fitzmaurice about the low score and this is where the list came into play.  The complainant told Mr Fitzmaurice that she was willing to work on her performance and he listed next steps and objectives.  The complainant said that she accepts that there were things that she could have done better and that there was always room for improvement, but she said she didn’t get any formal training.  Mr Gaffney pointed out six areas where the complainant gave herself a score of “5,” indicating that there was no requirement to improve.  Mr Fitzmaurice did not concur with her “5” rating on any of these performance measures.  The complainant agreed that Mr Fitzmaurice had a different opinion.  Mr Gaffney said that this different opinion was not based on the complainant’s pregnancy and that it was related to the complainant’s performance.

Asked when she told her employer that she was pregnant, the complainant said that she told Ms Gregan in the consultation room in the pharmacy on October 21st.  She said that she was seven or eight weeks pregnant at that stage.  She said that Ms Gregan told her that people normally wait until the 12-week scan before telling people.  She said that her cousin who works in the pharmacy and another colleague also knew, although she didn’t tell them at work.  She said, “we were talking about it in work.”  She said that this is how Mr Fitzmaurice came to know.  She said, “We were talking about me being pregnant, being excited and he asked if someone was pregnant.”  She said that he could have overheard her talking to her colleagues in the shop.  She said that he asked her if she was joking.

Mr Gaffney asked the complainant about her description of the phone call from the HR manager, Mark Keegan on October 29th 2019, in which she said that he asked her if he could meet her for “a chat.”  The complainant said that she didn’t think the meeting was important.  On the day of the meeting, the complainant asked Ms Gregan if she was in trouble.  She agreed with Mr Gaffney that, when she saw that the letter was about a probation review meeting, it was about something serious.  However, she said that nothing was brought to her attention to make her think that her probation should be reviewed.

Mr Gaffney referred to the four areas of concern which are listed in the letter from Mr Keegan:

1.              Alleged unauthorised use of ordering medication through the United Drug website;

2.              Alleged failure to complete your role as Tosho operator to the level expected;

3.              Alleged carelessness causing potential medication errors;

4.              Alleged failure to follow management’s instructions.

The complainant said that she thought that the third point above was serious, the possibility that someone would think she was careless.  She said that she didn’t think she was careless.

The complainant said that she spoke to Mr Keegan on the phone on Tuesday, October 29th and she agreed that he sent her a letter by email the same day.  She said that she didn’t open the letter until the next day.  When she read the letter, she asked Ms Gregan if she was in trouble.  Ms Gregan advised her to show the letter to Mr Fitzmaurice, and Mr Fitzmaurice advised her to bring someone to the meeting.  The complainant said that she didn’t think she needed anyone at the meeting.  Mr Keegan then asked Mr Fitzmaurice to come in to the meeting.

The complainant said that she had no previous indication that she did anything wrong and, although she was worried when she got the email from Mr Keegan, in her own head, she said that she didn’t think she did anything wrong.

Mr Gaffney referred to the letter from Mr Keegan on October 31st in which he confirmed that the complainant’s employment would end on December 12th.  For the duration of her notice, Mr Keegan said that the complainant would work as a pharmacy assistant and not as a Tosho operator.

The complainant said, “even before all this, I was told to concentrate on OTC work and other jobs.”  She said that when she finished Tosho work, she would do cleaning and sorting stock and she was always doing something.  She said that if a big order came in from a nursing home, her colleague would process the order on Tosho because she was quicker.

In reply to a question from me, the complainant said that her job was mainly as a Tosho operator.  She said that it was not a role that many people in the pharmacy could do.

When she got the letter from Mr Keegan on October 31st, the complainant said that she thought that she shouldn’t have been fired. 

Mr Gaffney said that nothing of what the complainant said about her dismissal has anything to do with her being pregnant.  The complainant replied that she thought that it was unfair that she was dismissed.

Mr Gaffney pointed out that, in the email she sent to Mr Keegan on October 31st, the complainant said that she had time to think about it, but she still didn’t say anything about her pregnancy.  The complainant replied that the only thing that changed was her pregnancy.  Mr Gaffney suggested that what had not changed was the complainant’s performance.  The complainant said that she should have got the same training as her colleague on the Tosho machine.

When Mr Gaffney put it to the complainant that the company’s position is that her dismissal had nothing to do with her pregnancy, she said that Mr Fitzmaurice knew that she was pregnant.  In response to a question from me, she said that she didn’t know whether Mr Keegan knew.

Mr Gaffney referred to the complainant’s statement in her submission that “No account was taken of my position as a newly pregnant woman with concerns for her unborn baby.”  He asked the complainant if she had told her employer about her concerns.  She did not reply to this question.

Mr Gaffney referred to the complainant’s statement that Ms Gregan told her to raise her pregnancy with Mr Fitzmaurice and Mr Keegan at the meeting on October 30th.  She said that she didn’t mention that she was pregnant because she was “bombarded with questions.”

The complainant finished giving evidence on November 12th 2021 and the hearing resumed on May 18th 2022 for the respondent’s side to present their evidence.  When the hearing opened, Mr Gaffney said that the respondent’s side would not submit any evidence.  The company’s managing director, Ms Stack said that Mr Keegan left the company in early 2020 and was not available to give evidence at this stage.  Mr Gaffney said that the respondent is satisfied that the complainant’s dismissal was not related to her pregnancy.  He said that no one who was involved in her dismissal knew that she was pregnant.

The Legal Framework

On behalf of the complainant, Ms Cahill referred to Council Directive 92/85/EEC, published in October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (“the Pregnancy Directive”).  She specifically noted the importance of article 10 of the Directive, under the heading, “Prohibition of dismissal,” which, at paragraph 1, provides that,

“Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8(1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.”

Article 2 defines a pregnant worker as a worker “who informs her employer of her condition, in accordance with national legislation and/or national practice.”

Ms Cahill went on to note the definition of discrimination at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”): 

“…discrimination shall be taken to occur where –

(a) 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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(a), the “the gender ground” islisted as one of the nine discriminatory grounds.    

A new section, section (2A) was inserted into the 1998 Act by the Equality Act 2004.  This provides that less favourable treatment of a pregnant employee is to be considered as discrimination on the gender ground:

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

It is the complainant’s case that she was discriminated against on gender ground, based on her disclosure to her employer that she was pregnant and her dismissal a week later.  Ms Cahill submitted that the combination of the complainant’s dismissal and her pregnancy is sufficient to show that she was discriminated against.  She said that the respondent “sought to cobble together a number of allegations in respect of which the complainant was not adequately advised and/or afforded fair procedures and sought to rely on these allegations in order to escape liability for discriminatory dismissal…”

The Burden of Proof

The onus of proving that discrimination has not occurred falls on a complainant in the first instance.  This was provided for by another insertion by the Equality Act 2004 at section 85A of the 1998 Act:

“85A – (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 him or her, it is for the respondent to prove the contrary.”

We know from paragraph 1 of the Pregnancy Directive that a pregnant employee may be dismissed only “in exceptional cases not connected with their condition.”  The burden of proving that a dismissal is not pregnancy-related is therefore shifted to a considerable degree, because the fact of pregnancy is the primary fact.  At paragraph 2 of the Directive, the responsibility for establishing that a dismissal is for a reason other than pregnancy is clearly set out:

“If a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing[.]”

Consideration of the Facts

At the end of an internship of two months, the complainant commenced employment with the respondent on August 19th 2019.  She was recruited specifically to work on the Tosho machine, a system for organising, packing and preparing bulk medication prescribed to nursing home patients.  The complainant was on probation for the first nine months of her employment.

While she complained at the hearing about a lack of “formal” training on the Tosho system, the complainant did not raise any issues about her training until she gave evidence at the hearing of this complaint.

On October 5th 2019, the supervising pharmacist, Mr Fitzmaurice, wrote to the company’s managing director, Ms Adrienne Stack, notifying her of his concern about errors on the Tosho machine.  He gave examples of specific errors that occurred the previous day on prescriptions dispensed to two nursing homes.

On October 15th, the area manager, Ms Lorraine Ireland, wrote to the HR manager, Mr Keegan, informing him that she “had to speak to Kiera again about ordering items on the internet.”  The following day, Mr Keegan sent an email to Mr Fitzmaurice and another pharmacist, Ms Rebecca Gregan, reminding them that the complainant’s probation should have been reviewed on September 19th, but that this hadn’t been done.  He went on,

“In light of issues with St Luke’s can you send me your concerns (if any) as based on initial feedback from area management it has been poor and we may have to consider failing her probation.”

On October 17th, Mr Fitzmaurice carried out a “30-day review” of the complainant’s probation, although she had been in employment at that stage for around 60 days.  In the documents she submitted in evidence, the complainant wrote that her job title was that of “Tosho Operator” and that she had been made aware of the company’s standard operating procedures through a system designed for accessing SOPs. 

The complainant gave herself a rating of 61 out of 70, compared to Mr Fitzmaurice’s rating of 40.  At the end of the meeting, Mr Fitzmaurice wrote on the review form that an improvement was needed to meet the standard required.  The complainant wrote that she was willing to work on the things that were discussed.

On October 21st, the complainant said that she told Ms Gregan that she was pregnant.  She said that Ms Gregan told her to “tell HR” after she had her 12-week scan.  She said that she was seven or eight weeks’ pregnant at that stage. 

It is apparent that Mr Fitzmaurice wrote to the HR manager, Mr Keegan, with the outcome of the 30 day-review, because on October 29th, Mr Keegan wrote to Mr Fitzmaurice and asked him if now, two weeks after the review, the complainant’s performance had improved.  A document issued to the complainant on October 29th is Mr Fitzmaurice’s reply to Mr Keegan, in which he said, “performance issues raised in the review are still relevant.”  He gave examples of his concerns:

“As you are aware, Kiera has not been working in her intended role of Tosho machine operator owing to patient safety concerns relating to issues with a particular nursing home and general accuracy issues as addressed in my earlier email to Ade and yourself.

Performance of other OTC and general dispensary duties is still inconsistent.  For example, despite being shown on a number of occasions how to receive and check in a dispensary order I noticed on Wednesday evening last than an order had been put away by Kiera without checking it into stock on MPS.  This was disappointing given the attention we as a team have given to this issue recently.  As another example, the OTC area is still not clear of Ud totes containing stock which was a point we discussed during our review.  (I will forward you a list of basic daily tasks agreed by Kiera and I following our review).  In my view, the tasks currently allocated to Kiera should be easily performed to a satisfactory level and this is not the case. 

Given the basic nature of the tasks mentioned above it is difficult to see how the much more complex role of Tosho operator could be safely performed without posing a risk to patient safety.”

Later on October 29th, Mr Keegan phoned the complainant, following up with a letter inviting her to a probation review meeting the next day.  Just before the meeting, the complainant asked Ms Gregan if she thought she was in trouble.  She said that Ms Gregan suggested that she tell Mr Keegan that she was pregnant; however, she said that she didn’t tell him.  At the meeting, the complainant was informed that she had failed her probation and that her employment would end on December 12th.  On October 31st, she asked if she could have another meeting to discuss her dismissal.  Mr Keegan asked her to provide a written submission in advance of any meeting; however, on November 2nd, the complainant replied that she was taking advice regarding her dismissal, that she was going on holidays until November 7th and that she would contact Mr Keegan “in due course.”  She did not contact Mr Keegan again.  She was absent due to illness from November 8th until her employment ended on December 12th and she submitted this complaint to the WRC on March 13th 2020.   

Findings

The Pregnancy Directive requires an employer to do more than simply not dismiss an employee because she is pregnant.  An employer may not dismiss a pregnant employee unless there are exceptional reasons which are permitted under national legislation or practice.  It follows therefore that, before dismissing a pregnant employee, an employer must show that the reasons are substantial and that termination of employment is necessary to prevent something untoward happening or to protect others. 

The Pregnancy Directive defines a pregnant worker as a worker “who informs her employer of her condition, in accordance with national legislation and/or national practice.”  While there is no national legislation in Ireland regarding the form of notice to be given to an employer regarding pregnancy, the national practice is that an employee tells their employer that they are expecting a baby, indicating the due date and the date that they intend commencing maternity leave.  The complainant did not follow this practice. 

A consideration of the timeline of events that that led to the complainant’s dismissal leads me to conclude that no one in the respondent’s organisation was aware that she was pregnant at the time of her dismissal.  

On October 15th 2019, when the HR manager wrote to the Passage West shop expressing concern about the complainant’s performance, saying, “we may have to fail her probation,” he did not know that she was pregnant. 

On October 17th 2019, when she attended a “30 day review” with Mr Fitzmaurice, he was not aware that she was pregnant.  Four days later, she said that she told one of the pharmacists, Ms Gregan with whom she said she got on well.  She said that Ms Gregan advised her to wait until her 12-week scan before confirming her pregnancy to HR.  She said that, from “banter in the shop,” Mr Fitzmaurice came to know that she was pregnant.

At the meeting on October 30th 2019 with Mr Fitzmaurice and Mr Keegan, when the complainant had some indication that she was, in her own words, “in trouble,” it seems to me that the fact of her pregnancy could have been one way of saving her job.  Although she claims that Mr Fitzmaurice knew that she was pregnant, she didn’t mention it.  For her to avoid any reference to her pregnancy at the meeting to review her probation, in the knowledge that the supervising pharmacist was aware of her condition, simply doesn’t make sense. 

When she wrote to her employer on October 31st after the meeting at which she was dismissed, the complainant said that she was shocked, but she didn’t say that she was pregnant.  When she wrote on November 2nd to say that she was going on holidays from November 4th to 7th and that she would contact Mr Keegan in due course, she did not mention that she was pregnant.  The medical certificate that she submitted on November 8th said that she was absent due to anxiety and stress, and did not refer to pregnancy.

While I understand that the complainant must have been disappointed when she was dismissed, she has not demonstrated to my satisfaction that her employer was aware that she was pregnant at the time of her dismissal or during the period of her notice from November 1st to December 12th 2019.

Conclusion

I am entirely satisfied that the complainant was not dismissed because she was pregnant, but that she was dismissed because she had not demonstrated sufficient that she could work on the Tosho system for administering medication to nursing homes without a risk to patient safety.  I am also satisfied that, when she was dismissed, she had not informed her employer that she was pregnant.

I have concluded that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that her complaint is not well founded.

Dismissal, pregnancy