Complainant

Respondent

Parties

Lindsey  Toner

The Valley Pharmacy Limited Healthwise

Representatives

  Ms. Lindsey Toner

Lisa McBride Gallagher & Brennan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053233-001

12/10/2022

The complainant, Ms. Lindsey Toner, worked in the respondent pharmacy and was unable for medical reasons to wear a mask.  The respondent, Valley Pharmacy Ltd, refused to allow her work in the pharmacy without wearing a mask, which they say was in accordance with the prevailing advice/regulation covering pharmacies during and in the immediate aftermath of the Covid epidemic.  The complainant alleges, that in refusing to allow her return to work, the respondent dismissed her.

Evidence was given under oath/affirmation by the complainant, Ms. Toner, and, on behalf of the respondent by Mr. James Cassidy, Director of the respondent company.  All witnesses were subject to cross examination.  Submissions were received from both parties and considered by me.

The complainant, Ms. Lindsey Toner, was an employee of Healthwise Pharmacy Group and worked in as a Pharmacy Technician.

In January 2021 the complainant tested positive for Covid-19 and was unable to work due to government guidelines. She was later hospitalised for 11-days. After being discharged from hospital, she spent several months on sick leave until August 2021 when she asked to return to work   She had been to the doctor several times and was told that she was suffering from Long Covid and was referred to the Long Covid Hub. She did wear a mask in public buildings, shops etc but could only sustain the mask for 5 minutes before having to leave the premises rapidly for fresh air. Every period after wearing a mask she suffered bouts of coughing and choking which usually ended with chest pains. It became apparent that the complainant was not capable of wearing a mask for a prolonged period. 

The complainant phoned her Manager, Mr. Terry Dobbins, in August 2021, and made him aware that she was ready and able to return to work from the start of September 2021. She also informed him that she was physically unable and medically exempt from wearing a mask but offered to wear a visor instead. The complainant also offered to wear a mask if she was required to speak with a customer face-to-face (for up to 5 minutes).  Her manager told the complainant that he would have to discuss this with the owners of the company and that he would get back to her. The manager informed her two weeks later that she could not return to employment until she could wear a face mask.

Neither her manager, nor anyone from respondent at that time (August 2021) or any time after ever asked to see a Face Mask Exemption Letter. At that point in time, the complainant expected that her manager would inform her that she could return to work and wear a protective visor. She expected him to advise her that she would be required to provide a medical exemption letter from her GP if she was unable to wear a mask.

The complainant messaged her manager again on the 13th of October 2021, to see if she could return to work as she was aware that the government guidelines had been easing. She was again told that she couldn’t return without a mask.

The Mask Exemption letter was provided to the complainant by her GP. There was always clear evidence available which supported her Mask Exemption based on a medical disability, and therefore she should have been allowed return to work wearing a visor.

There was ample room in the Dispensary where the complainant worked. There were other rooMs. in the pharmacy that she could have completed some tasks without being near others. The complainant informed her manager many times that she was happy to always wear a visor and could put on a mask for a brief few minutes if required to go down and speak to a customer on the shop floor.

It should be noted that that the complainant happily wore a mask every day at work and followed all SOP’s and guidelines until the day she left work due to being ill.  There was never any mention, thought or attempt to accommodate the complainant as an employee. All government covid restrictions were dropped In January 2022 and yet Healthwise still failed to contact her or to consider allowing her to return to work. In September 2022, the complainant terminated her employment.

The complainant applied for several pharmacy technician jobs in the weeks and months after, however she was not called for a single interview. In October 2022, she began a course through the ETB.

The complainant was employed by the respondent from December 2011. As a pharmacy technician, at all times she was an exemplary employee. The respondent relies on various iteMs., including the employee handbook, which details the policy on dealing with infectious conditions and states that all employees must follow any guidelines issued from the HSE and other relevant bodies on infection control while at work.

The complainant was diagnosed with COVID in January 2021 and subsequently hospitalised. She was deemed medically unfit to return to work for a number of months and suffered with long COVID which manifested itself by way of fatigue, shortness of breath, chest pains and asthma type symptoMs.. As a result, the complainant submitted that at all material times she was unable to wear a surgical face mask for any extended period of time.

The complainant contacted her manager around September 2021, inquiring as to whether she was permitted to return to work. She explained that she was unable to wear a face mask. However, she did propose she could wear a visor instead. She further proposed that she would wear a mask if  required to speak with a customer face to face for up to five minutes. The manager spoke with Mr.. Cassidy, the owner, and having taken the advice of the Irish Pharmacy Union and Health Service Executive, the manager confirmed to the complaint that she would only be permitted to return if she could wear a surgical facemask in line with current public health guidelines. Further confirmation of this was given to the complainant on the 13th of October 2021.

The complainant remained absent from work and refused the offer made by the respondent to be examined by an occupational therapist or other medical professional to assist the complainant in respect of ongoing health issues, including the effects of wearing a mask.   In early March, the complainant engaged in a series of email correspondence with the owner, Mr.. Cassidy, and it was agreed that the complainant should utilise the grievance procedure and that an external independent consultant would be engaged to deal with the complainant’s grievance.

At all material times, the grievance procedure was conducted in a fair and impartial manner. A full report of the outcome was communicated to the complainant and the grievance was not upheld.

The complaint was informed that she could appeal the findings of the investigation in writing to Mr.. Cassidy on receipt of the report. By letter dated the 14th of June, the complainant informed Mr.. Cassidy of her intention to appeal the findings notwithstanding that she was outside the time limit set for such an appeal. The respondent agreed to engage Graphite HR to conduct the appeal. The outcome of the appeal was that the initial decision was upheld.

The complainant subsequently resigned from her employment with the respondent.

The respondent submits that the pharmacy is a health care facility and that same is subject to specific advice and guidance published by the HSE in collaboration with the Health Protection surveillance centre and the Irish pharmacy union.  At all times the respondent strictly adhered to the advice of the public health authorities. The Pharmacy has a duty of care to all its staff, including the complainant and the members of the public who frequent the pharmacy as customers.

The Respondent submits that the guidance for pharmacy staff in respect of the wearing of masks was at all times more stringent than the general guidance on mask wearing for the public in other settings.

The guidance received from the HSPC through the IPU was as follows;

This guidance applies to pharmacy staff and in pharmacy settings.

Surgical face masks should be worn by healthcare workers when providing care to patients within two metres of a patient regardless of the COVID-19 status of the patient.

Surgical face masks should be worn by all healthcare workers for all encounters of 15 minutes or more and other healthcare workers in the workplace for a distance of two metres cannot be maintained.

This means that a health care worker should done a surgical mask if they anticipate being within two metres or more of other health care workers for a continuous period of 15 minutes or longer. It is not intended that healthcare workers should attempt to estimate in the morning the total duration of a sequence of very brief encounters domain occurred during the day.

The respondent relies on the copy of this advice received by email on the ninth of August 2022.

Furthermore, the respondents admits that the updated guidance in respect of control of management of COVID-19 and pharmacy settings was being issued as public health advice changed. However, at no point that the sub guidance recommend that pharmacy staff could cease to wear their masks.

In particular, the respondent relies on the HS  Current recommendations for the use of PPE in the context of COVID 19 pandemic updated V 2.7 published 18/01/22.

The complainant submits that in around October 21, the public health advice had eased. The respondents submits that whilst that may have been true in the context of mask wearing general settings, the guidance has remained unchanged in respect of mask wearing among staff in healthcare settings such as pharmacies. This guidance is clear and without exception.

The respondent acknowledges the duties placed on it by the Employment Equality Act. In particular, the respondent has regard to Section 16 of the Act which relates to reasonable accommodation.

The respondent submits that the complainant was unable to comply with the guidance and in the circuMs.tances where the complainant was working in a confined setting. The respondent could not reasonably accommodate the complainant with any other role within the pharmacy, such as any other alternative role would also require the complainant to wear a face mask due to interactions with other staff and customers. Furthermore, given the nature of the disability in the guidance and place, it was not possible for the respondent to put any physical alternative measures in place as to do so would create a disproportionate burden on the on the respondent. The respondent submits that the said pharmacy is a dispensary area in which the complainant worked on which measures four metres by two and a half metres. There's an island in the middle which measures 2.75 sqm  which reduces the space available it is not possible to maintain a social distance of two metres while working in this area. Furthermore, any other such roles such as retail based stocking or customer based roles would require interaction with the public and would require the use of a face mask.

The respondent relies on recent decisions of the Commission in a worker v a pharmacy of June 22.  ADJ 34440, ADJ 34466, ADJ 34468, ADJ 34469, and ADJ 34470 wherein the public health requirements for mask wearing in pharmacy settings was accepted by the Commission.

The complainant alleges that the actions of the employer meant that she could not return to work after long Covid.  Effectively she is therefore alleging constructive dismissal.  The respondent denies that the complainant was dismissed but rather that she resigned. 

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee. In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant in this case contends that she was constructively dismissed.  It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.

From the evidence given at the hearing it is clear that the respondent acted in accordance with the prevailing medical advice covering Pharmacies in the context of the COVID epidemic.  The respondent’s Handbook makes it clear that that all employees must follow any guidelines issued from the HSE and other relevant bodies on infection control while at work.  It is clear therefore, that the respondent was not breaching the terms. of employment of the complainant by requiring her to adhere to the requirement on the wearing of facemasks.  Whether or not other employees, on occasion, failed to comply with the respondent’s instructions does not render the respondent’s conduct in requiring adherence to the guidelines unreasonable.  It merely means that the respondent may have to review such conduct by other employees.  The behaviour of the respondent in dealing with the complainant was at all times based on medical advice from those bodies responsible for such advice nationally and therefore there was nothing in that behaviour that would allow the complainant construe that she was justified in determining that she was being dismissed.    Accordingly, the complainant has not established that she was constructively dismissed and therefore, she was not unfairly dismissed.

The complainant was not unfairly dismissed.

Constructive dismissal, wearing of face mask