Complainant

Respondent

Parties

Fadia  Alshareefy

Morgan O'Connell Pharmacy Limited t/a Blackglen Pharmacy

Complainant

Respondent

Representatives

James Doran BL Instructed by  Kevin Tunney, Solicitor, of Tunney Solicitors

Derek Dunne BL instructed by Joanne Hoban,  Solicitor, of Kelly Hoban LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00059151-001

30/09/2023

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

CA-00059151-002

30/09/2023

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

CA-00059151-003

30/09/2023

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

CA-00059151-004

30/09/2023

The issues in contention concern a Pharmacist and a Pharmacy Business. The Complainant maintained that she had been Dismissed Unfairly and had been discriminated against on the Race, Disability & Failure to provide Reasonable Accommodation grounds. Associated complaints under the Payment of Wages Act,1991 and the Employment (Information) Act, 1994 were also lodged.

The Rate of Pay was stated to have been €51.00 per hour for a 34-hour week.

The employment began on a disputed date in April/May 2022 and ended on the 9th of April 2023.

The Employer was a Group comprised of three Pharmacies but with all of the three business Units   being financially independent.

2:1         Employment Equality Act, 1998 - CA-00059151-002

The Complainant was represented by Mr J Doran BL and gave a comprehensive Oral testimony which was supported by a lengthy Written Submission.

In essence her complaint was that she had been Discriminated, contrary to the EE Act, 1998 on the grounds of her Disability and by the Failure by the Respondent Employer to give her “Reasonable Accommodation” in recognition of the alleged Disability.

There was no doubt that the Complainant had suffered from poliomyelitis – “Polio” as a child. She now walks with a limp and has somewhat restricted mobility in her lower right and upper left limbs. However, she has overcome these restrictions and has a MSC in Clinical Pharmacy.  She was employed, prior to joining the Respondent, in a major international Pharmaceutical Retail Chain in Dublin. However, she wished to pursue further studies to PhD level (she was enrolled on a PhD Programme) and sought a more flexible, time wise, employment. The Respondent positon appeared to offer this, and she had applied.

At initial interview on the 4th April 2022 with the Respondent’s Director, the Polio situation was touched upon. The Complainant had felt uncomfortable with the somewhat blasé tone of the Interviewer but as the Polio did not appear to be an issue had let it go. The Complainant had begun work, initially on an ad hoc familiarisation basis in April 2022 but properly from the 18th May 2022 - the date of the formal written contract was the 21st May 2022.

There appeared to have been no Discriminatory issues and the employment had proceeded uneventfully. It was accepted that the Complainant would not administer vaccines as this was advised against by the Pharmaceutical Governing Body. The Respondent had accepted this from the start.

However, on the 22nd May 2022, an incident arose over a prescription. The Patient was not a local resident, and the Complainant had carried out some investigations. She had contacted the initial Medical Prescriber. Once satisfied that all was in order, she had dispensed the Prescription. A number of days later members of the Gardai called to the Pharmacy to query the prescription. They were investigating a possible illegal multiple use of the prescription. The Gardai officially identified themselves and the Complainant confirmed basic facts with them. The Gardai had copies of the prescription and related e mails.  The Complainant was uneasy with the entire incident and immediately after the Gardai left had contacted the Senior Pharmacist, Ms M, and eventually the Principal, Mr O’C. He had become extremely annoyed and agitated. He was shouting in a loud voice in relation to her, in his view completely inappropriate, interactions with the Gardai. She should have directed the Gardai to him and had no further contact with them.

Following this, the employment relationship had cooled significantly both with Mr O’C and the Senior Pharmacist, Ms M. They, from this time, effectively ignored her and offered no guidance or professional support to her. The Pharmacy Technician developed the practice of bypassing her / going over her head and referring all issues to Ms M or to Mr O’C.

The Pharmacy had a CCTV system which the Complainant felt was abused by Mr O’C to constantly monitor her, unlike other staff. Requests for “Reasonable Accommodation” were laughed at, in her view. An issue had arisen over suitable chair which was not satisfactorily resolved.

In December 2022 the Complainant sought and was granted leave to travel to Iraq for family reasons over the Christmas holiday period. Regrettably this had proved very disappointing. The Complainant had requested permission to return early to work. She had developed Depression as a result of the Iraq incidents. No allowance was ever made by the Respondent employer for this depression. The Respondents showed no empathy or consideration for the Complainant at his time. Various other minor incidents then took place. The Respondent employer, via the CCTV, would query the times and duration of her use of the Staff facilities. The tone was always aggressive. The staff had all received a Christmas Gift, but she was notable for not having been included.

All told the atmosphere was quite unpleasant for the Complainant. Due to her ill health, the Depressive issues, she had to suspend her PhD studies. She was under anti-depressant medical care at this time. No recognition or allowance was made for this by the Respondent.

On the 8th April 2023, late in the evening, at the close of business after a 12-hour shift, the Principal Respondent, Mr O’C, had called to the Pharmacy. In an abrupt manner he told her that the Pharmacy was not making the expected financial returns, it was in effect losing a lot of money and that she had to be let go. It was an unfeeling message delivered very abruptly. No Employment procedures or consultations had been followed.

In addition, her Depression, post-Christmas 2022, was completely ignored.

Mr Doran BL cited extensive Legal case law, both Irish and EU, in support of the Complainant position. Furthermore, Basic Rights of Natural Justice set out by the Irish Superior Courts had been “trampled upon” by the Respondent in the manner of the ending of the employment.

It was a clear case of a Discriminatory action against an employee with a Disability, to whom no reasonable accommodation had been made

2:2       Terms of Employment Information Act 1994 - CA-00059151-003

The Complainant via her Representative argued that the strict terms of the Act had been breached by the Respondent. The Respondent had failed to provide the Complainant with a Written Statement of Terms and Conditions/Contract of Employment in due time as per the requirements of Section 3(1) (a) the amended 1994 Act – the five-day requirement for a Statement of main terms and Conditions of Employment.

2:3       Payment of Wages Act,1991 – CA-00059151-004

This Complainant was withdrawn at the Hearing.

3:1       Employment Equality Act, 1998 - CA-00059151-002 

The Respondent was represented by Mr Derek Dunne BL. A number of Witnesses gave Oral testimony -principally Directors, Mr M. O’C & Ms K O’C. Ms M, Supervising Pharmacist and SL, a Technician Staff member also gave oral evidence. A comprehensive Written Statement was also relied upon.

In essence the Respondent case was that no Discrimination had occurred. They knew from the commencement of employment that the Complainant had suffered from Polio. As Health care professionals and from family personal circumstances, they were able to accept this. The Directors were very committed to engaging/assisting all persons with Disabilities. Evidence was quoted in support of this.

One other Staff member had a medical condition that was being readily accommodated. Close family members of both Directors were also in challenging medical situations. The Principal Director, Mr O’C, had a well know, honourable record, of working with Disabled people both in Ireland and previously overseas.

The Complainant had been employed as a “Support” Professional Pharmacist. Large volumes of “In House” patient vaccinations were being undertaken at the time. The presence of an additional Support professional would allow the other Pharmacists to cope with the additional, basically Covid, workload. The fact that the Complainant could not Vaccinate patients was not an issue as this was not required of the role.

Reasonable Accommodation had been provided as necessary and extra staff resources had been allocated to support. The Respondent quoted extensive case law (Mitchell v Southern Health Board [2011] ELR 201, Valpeters v Melbury Developments [2010] 21 ELR 64 , Margetts v Graham Anthony Ltd EDA038 among others) in the area of Discrimination – the key legal issue was that a “Prima facie” case to support an allegation of Discrimination had to be made. This was conspicuously lacking.

The other legal argument, again supported by case Law was that an individual may have an accepted Disablement such as Polio, but this does not in itself automatically translate to an almost automatic assumption of Discrimination from an Employer.  Margetts v Graham Anthony Ltd EDA038 was cited in support.

Allegations regarding overbearing CCTV monitoring and alleged “cool” relationships with other Pharmacists (all of which were denied) especially, Ms M, are not proofs of Respondent Discrimination.  The case, in legal terms, lacked adequate proof to be sustainable.

The allegations that the Respondents had ignored the post-Christmas/Return from Iraq personal disappointments and follow-on alleged Depression was false. They had never been made aware of it. The Complainant had experienced particular personal disappointments In Iraq over Christmas. The Respondent was always anxious to be as supportive as possible. However, they had never been advised of a medical diagnosis of Depression. The Complainant had stated that she wanted to get back to work to “Clear her head and give her a focus” to help her over her difficulties. Director, Ms K O’C gave evidence in relation to this entire situation.

In final summary and as set out in the extensive oral Testimony from Mr O’C, the particular Pharmacy was in April 2023 loosing substantial money. Revenue streams from vaccinations during Covid had disappeared and the Pharmacy was now loss making. He had to take the very regrettable step of radically reducing overheads to survive. The Pharmacy could no longer afford an additional professional Pharmacist. He had, effectively, made the Complainant redundant. He had explained to the Complainant, as best he could, the situation.

In response to questions from Mr Doran BL for the Complainant, he confirmed that there were no other suitable Pharmacist vacancies in the Group. Following the Irish Supreme Court Nano Nagle School v Daly [2019] IESC 63 arguments/requirements as cited by Mr Doran there was no realistic possibility of a “job redesign”.

Mr Doran queried the lack of proper advance consultation and the lack of a reflection period for the Complainant. No Appeal of the decision, to an Independent party, had been offered

In response to further questions Mr O’C agreed that the Pharmacy group had advertised for casual Locum pharmacists at the time of the Redundancy, but this was a normal Pharmacy practice. In any event the Pharmacy Group had not actually recruited anyone. Both he and his fellow Director, both fully qualified Pharmacists, had covered any shortfalls from sickness or other unexpected Pharmacist absences.

Ms SL, a staff member gave, in evidence, her recollection of the first meeting in April 2022 between the Complainant and Director KO’C. While not a direct party to the conversation she was physically nearby in the Pharmacy. It had been a very pleasant meeting, and she could not recall any “bruskness” in the manner of Ms K O’C or inappropriate references to the Complainant’s Polio issue. Mr Doran BL, for the Complainant questioned her independence, being a current employee, as a witness. She refuted this and stated that she had given a full truthful answer as to her recollections.

3:2        Terms of Employment Information Act 1994 - CA-00059151-003

The Respondent absolutely queried this complaint stating that it lacked all and any particulars. A proper Contract of employment had been provided within a month of starting work as required by the 1994 Act.

3:3       Summary

The case lacked a solid legal foundation (as required by Section 85 A of the EE Act,1998) as regards proofs of actual Discrimination. The Respondent had never had any professional Pharmaceutical issues with the Complainat during her employment. It had been a regrettable business/financial decision.

 (Some regulatory issues had arisen post the ending of employment, but these were unknown at the date of termination.)

4:1        Legal Discussion. Employment Equality Act,1998

The complaint is based on the Employment Equality Act,1998 and has to be seen as that.

The key question in this case is whether or not a Disabled Complainant (clearly in this case having a Polio condition) was discriminated against on this Disability Ground and refused Reasonable Accommodation. A specific focus has to be placed on the definition of Disability and the Burden of Proof required by the Act to sustain a complaint.

Section 85A of the Act is relevant.

[Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

The entire area raised is often debated in the context of Legal and Academic discussions on the Burden of Proof in Equality cases. Section 2-214 to 2-222 the Burden of Proof Section of Employment Equality Law by Bolger, Bruton and Kimber, Round Hall 2012, is instructive.

 A key point is highlighted at Section 2 -218

“2-218

The argument that mere membership of a protected class and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Valpeters v Melbury Developments Limited [2010] ELR 64 at 68

Highlight by Adjudication Officer.

In plain English, in this case, the Complainant was clearly disabled from a childhood Polio. This was accepted by all parties. She had been recruited with this disability by the Respondents. The Principal Respondent, Mr O’C was also qualified as a Physiotherapist. There could be no doubt that while a Formal Written Risk Assessment had not been carried out, he was clearly in a medical knowledge position to form a good employer assessment of the situation.

The Legal question them arises, as identified in the Valpeter’s Case above, did the Complainant suffer Discrimination, (leaving the Disability situation to one side) i.e., being treated “less favourably,” than other employees?

The Labour Court has referred to the need for “Facts on credible evidence”.

To satisfactorily answer this question, we must look closely at the actual facts presented as evidence in this case.

4:2         Review of the Evidence (Oral and Written) presented.

The issue here has to be to identify if possible “Facts” etc that could sustain a complaint of Discrimination

Discrimination is defined by the Employment Equality Act,1998 at Section 6

Discrimination for the purposes of this Act.

6.

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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 subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

The principal incidents cited related to

1)      Reasonable Accommodation – Chairs / Physical layout of Premises etc.

2)      Situation with Garda investigators calling to Pharmacy /Follow Up.

3)      Allegations of Overbearing use of CCTV etc by the Principal Respondent towards the Complainant.

4)      By passing of Complainant by junior non-qualified staff. “Coolness” with other Professional Staff”

5)      Follow up to Post Christmas return to Work by the Complainant.

6)      Termination Meeting with the Principal Mr O’C

4:2:1      Reasonable Accommodation / Physical / Staff Issues

Physical Issues

From the evidence presented the Complainant was shown around the Pharmacy on Interview and spent a number of Ad Hoc \familisaration shifts before beginning Formal employment. There did not seem to be any major issues with the physical premises or floor lay out.

In relation to a suitable Chair there was some discussion between the Parties at the Hearing, but it did not seem to have been a major issue. None the less the Complainant physically fell at one stage (tripped over a small ladder 11/12 February 2023) but again did not seem to have been a major incident. Photographs were exhibited.

From an outsider, Adjudication viewpoint, the physical aspects of the premises seemed fine as regards what could be called “Reasonable Accommodation”.

Staff Issues

All the Oral testimony pointed to a reasonable policy of facilitating the Complainant’s PhD studies as far as possible. The recollection of all Parties was that this flexibility was discussed at the initial interview. There was some debate as to whether or not the Complainant had a special “bespoke” contract. The Respondent accepted that the work pattern of the Complainat (long days and more weekend work) was probably tailored to her, but this was not unusual in a Pharmacy setting with multiple Pharmacists.

The Complainant was facilitated with Christmas Leave to travel to Iraq and was also facilitated with an early return to work. From an Adjudication view point it is hard to see any Discrimination here

4:2:2       Meeting with Garda Investigators / 25th May 2022

Quite clearly a difference of opinion had arisen here with the Pharmacy Principal Mr O’C and with Ms M, the Senior Pharmacist. The issue pointed to a lack of Complainant staff familiarity / basic processes on how to deal with Police/ Garda Investigation queries. The Complainant had only been in the employment in the Pharmacy for a brief period at this stage. While she had been employed in a major Pharmacy Chain before joining the Respondent she probably had never had to deal with a situation as presented.

From the Oral testimony of both the Complainant and the principal Respondent, Mr O’C, it was clear that matters had been handled somewhat abruptly and irately by Mr O’C., when he had been contacted. Pharmacy operation especially where Controlled Drugs, Garda investigations & CDPR rights are concerned is a legal tightrope that Mr O’C may have overreacted to.

None the less from an Employment Equality Act,1998 view point it was hard to see how a Discriminatory issue based on the Complainant’s Disability was evident. It would be a major assumption to argue that the Complainant’s mild physical Disability in some way influenced her interactions with the Gardai or that the Principal Mr O’C saw it in that fashion. As a basis for a Discrimination claim it lacks a firm foundation.

4:2:3          Allegations of Overbearing use of CCTV etc by the principal Respondent towards to Complainant.

There was a significant difference of opinion here in the Oral Testimony. The Pharmacy, along with two other Pharmacies in the Group has a sophisticated CCTV facility. This is absolutely normal in the current security climate for Pharmacies. In his Oral Testimony, Mr O’C presented as a very busy business owner with three Pharmacies. To suggest that he or his fellow Director spent a lot of time watching the Complainant in some form of “overbearing” fashion is an assumption that is hard to understand. All staff were subject to equal overview and Discrimination against one individual does not seem a sustainable case.

4:2:4      By passing of Complainant by junior non-qualified staff. “Coolness” with other Professional Stafff”

This is an assertion made by the Complainant and in many ways related to the fallout from the Garda Investigation incidents. “Coolness” is a matter of perception, and no real evidence was presented that anything of a “Discriminatory” v/v the Complainants’ Disability occurred.  Regarding being by passed (referring routine decisions to the Principal Mr O’C) by more junior staff it has to be remembered that the Complainant has a MSC in Clinical Pharmacology. Second guessing her Pharmacy decisions, save maybe on some minor local non pharmaceutical business issues, would not appear to have been a tactic that Mr O’C, the Respondent Principal would readily have engaged in.

Discrimination as understood in the 1998 Act would not seem to have been a fact here.

4:2:5          Follow up to Post Christmas Early return to Work by the Complainant.

The Complainant suffered major personal disappointments in Iraq over Christmas 2022. She retuned early to Ireland to “get over things”. The Respondent Director, Ms K O’ C gave Oral testimony of being as sympathetic as possible to the Complainant. The Complainant stated that her return to work was to allow her to “clear her head”. The key factor was that the Complainant was less than forthcoming in detailing her medical /psychological diagnosis of depression. The Respondent counsel Mr Dunne BL cited the case of Connacht Gold Co-Op v A Worker EDA0822 in support of the case regarding the non-disclosure of a depressive illness.

The key issue from an Employment Equality Act,1998 viewpoint is whether or not the Complainant was treated “Less favourably” than a person without a Disability in a similar situation. There was no evidence in either Written or Oral testimony that a less favourable policy was adopted. As the Labour Court stated, in the quote above, a Discrimination claim has to be based on “Clear facts on credible evidence”

Discrimination is not supported here.

4:2:6       Termination Meeting with the Principal, Mr O’C

The Oral testimony and Written evidence here were crucial. The Principal, Mr O’C met, it appears unannounced, with the Complainant, at the close of business after a 12-hour shift, on Saturday the 8th of April 2023. At this meeting the Complainant was effectively dismissed on the basis that the Pharmacy was losing money and had to cut costs. Her termination was part of this process.

The Principal Respondent, under sworn Oath and subjected to vigorous cross examination from Mr Doran BL repeatedly insisted that the decision was purely financial. The Pharmacy was losing substantial money and could not be cross subsided by the other two Pharmacies in the Group. Economies had to be made and the reduction in the number of professional staff was the only option. The Complainant had been recruited to be a “Support” Pharmacist during Covid and the need for such a support role could no longer be financially supported. Mr Doran BL touched upon the landmark Supreme Court case of Nano Nagle School v Daly [2019] IESC 63.  He put it to the Respondent that none of the options cited in the Supreme Court case of job redesign, reclassification of job role etc were ever considered.

The Principal Respondent reiterated that it was about the critical financial situation and that there was no question of the Complainant being unsuitable as a Pharmacist or being Disabled in any way such as to prevent her being continued in employment if finances allowed.

From an Adjudication viewpoint, to say that SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary procedures /Industrial relations Act 1990 was absent from this meeting would be an understatement. In a job termination situation, which this was, consultation and considered discussion by both Parties is a critical factor. An Independent Appeal against a Decision is also considered a required factor.

The Complainant was afforded minimal rights either on a Statutory basis or on the grounds of Natural Justice.

However, and of critical importance is the Adjudication question, was this a Discriminatory action on Disability grounds – was this situation one that was visited on the Complainant as a result of her Disability?. Would an employee who did not have a Disability have been treated any differently?

A difficulty was that there were no Comparators in the case – there was no situation where a non-disabled staff member was allowed remain in employment where the Complainant was not. There was no correspondence of a Discriminatory nature. There was no evidence that Reasonable Accommodation was placing an allegedly unreasonable burden on the Employer.

In the absence of evidence and careful to follow the stricture of the Labour Court in the Valpeter’s case as quoted above at Adjudication Section 4:1 above.

“What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

4:2:7      Final Adjudicator Summary

The Adjudication view has to be that sufficient hard facts based on credible evidence has not been presented such as to allow the Adjudicator to determine that Discrimination, as defined in the 1998 Employment Equality Act took place.

The termination meeting was certainly procedurally most unfortunate, but the Adjudicator cannot engage in “Speculation or assertions” as to how a non-disabled person might have been treated.

 In a Discrimination case this was the key legal issue.

4:3      Terms of Employment Information Act 1994 - CA-00059151-003

The Respondent argued that no specifics had ever been advance in support of this claim. It was contended that all requirements had been complied with.

From an examination of Sections 3(1),3(1A) and Section 5 it would appear that the Act was completed with.

Unfair Dismissal, Discrimination, Terms and Conditions -information, Payment of Wages