EDA2422

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037376 (CA-00048756-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 11 October 2023. A Labour Court hearing took place on 15 May 2024.  The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Lindsey Toner (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00037376, dated 7 September 2023) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 11 October 2023. The Court heard the appeal in Sligo on 15 May 2024, along with a related appeal under the Unfair Dismissals Act 1977, the decision in which bears reference number UD/23/50. The Complainant gave sworn evidence on her own behalf. Mr James Cassidy gave sworn evidence on behalf of the Valley Pharmacy Ltd Healthwise (‘the Respondent’).

Outline of the Facts

The Complainant is a qualified Pharmacy Technician. It is common case that she excelled in her work and was very highly regarded as an employee by the Respondent. The Complainant’s employment with the Respondent commenced on 1 December 2011 and terminated with her resignation on 2 September 2022. Her annual salary for a four-day week was €25,015.50 and she also received an annual Christmas bonus of €500.00.

The Complainant contracted Covid-19 in January 2021 because of which she was hospitalised for eleven days. She subsequently suffered from Long Covid and was required to attend a pulmonary rehabilitation clinic for treatment and physiotherapy for about a year. She suffered from extreme fatigue and bouts of coughing for several months. Her condition left her unable to wear a face mask for anything longer than ten to fifteen minutes.

In late August 2021 she felt well enough to attempt to return to work and advised the Respondent of this while informing management that she would be able to wear a visor but was unable to wear a face mask for an extended period. She also advised that she was medically exempt from wearing a mask. The Respondent took advice in relation to the Complainant’s situation from the Irish Pharmaceutical Union. Having done so, the Respondent interpreted the advice as meaning the Complainant could not attend the workplace until such time as she was able to wear a face mask. The Complainant received an extended medical certificate from her General Practitioner for a further six months up until February 2022.

The Complainant submitted her complaint under the Act to the Workplace Relations Commission on 22 February 2022. Nevertheless, she wrote to the Respondent after that date, on 24 February 2022 outlining her concerns and taking issue with the Respondent’s insistence that she could only return to work when able to wear a mask. She expressed her view that the Respondent was in breach of the Employment Equality Act and Data Protection legislation in its treatment of her. She sought compensation of €78,102.00 for loss of earnings to date and into the future, compensation of €30,000.00 for an alleged leak of her personal data, along with a redundancy payment of €8,761.50. She advised that if the Respondent was not prepared to settle on her proposed terms that she was prepared to go to court to seek compensation. Mr Cassidy replied in a very detailed letter dated 28 February 2022. He restated the Respondent’s understanding of the prevailing public health advice at the time to be that staff employed in a health setting (such as a pharmacy) were required to wear a face mask at all times. Mr Cassidy also advised that the Respondent was willing to arrange a consultation for the Complainant with an Occupational Therapist or other professional to assist her in regard to wearing a mask. He further advised that nobody had been employed to replace the Complainant and the Respondent was keen to have her back in the workplace as soon as public health advice permitted this. He also offered to meet with the Complainant to discuss and resolve any outstanding issues.

The Complainant replied on 2 March 2022 and advised Mr Cassidy that she had taken legal advice and her solicitor was “eager to pursue a case against Healthwise for breaches of employment law and GDPR”. She also stated that “Returning to work at Healthwise is not a viable option due to everything that has happened, and therefore a compensation package is the only resolution”. Mr Cassidy replied that same day to advise that it was not the Respondent’s preference to adopt an adversarial approach and that he remained open to meet with the Complainant in an effort to resolve matters. Later that day, the Complainant stated that her preference was not to meet with Mr Cassidy as she thought it best “to keep everything formal and in writing for future reference”.

Mr Cassidy’s response advised the Complainant of the Respondent’s grievance procedure. He also forwarded a soft copy of the Employee Handbook. The Complainant agreed to engage in the proposed grievance procedure with an external Human Resources company. The latter arranged to meet with the Complainant via Zoom on 8 March 2022. On that morning, the Complainant felt anxious and requested to deal with the grievance issues via email. This was facilitated and the external consultant provided the Complainant with a written questionnaire to assist with the investigation. The consultant interviewed Mr Terry Dobbins, the pharmacy manager and the Complainant’s line manager. The outcome of the grievance process issued by email on 16 March 2022. The grievance was not upheld. The Complainant rejected the outcome and suggested to Mr Cassidy that the outcome was no surprise in circumstances where the consultant’s fee was paid by the Respondent. The Complainant re-iterated her preference for an out-of-court settlement. Mr Cassidy, by email of 17 March 2022, again offered to meet with the Complainant “to try and clarify the situation in a less adversarial way”.

On 14 June 2022, the Complainant wrote to Mr Cassidy seeking to appeal the outcome of the grievance process although the outcome letter of 16 March 2022 had specified that any appeal should be brought within five working days of that date. Mr Cassidy, nevertheless, allowed the appeal to proceed while noting that the Complainant had referred a complaint under the Employment Equality Act 1998 to the Workplace Relations Commission on 22 February 2022. The appeal hearing took place on 7 July 2022 via Teams. The appeal outcome, upholding the original findings, issued on 25 July 2022. The Complainant’s then solicitors wrote to Mr Cassidy by letter dated 27 July 2022 advising inter alia as follows:

“Please note that our client has engaged with, and now exhausted all internal avenues of address open to her.

In the circumstances where, as our client’s employer, you are refusing to honour the core terms of her employment, she will have no choice but to treat herself as having been dismissed contrary to the Unfair Dismissals Act, 1977 and the Employment Equality Act, 1998, if you as an employer do not confirm her right to return to work within fourteen days.”

On 5 September 2022 the Complainant wrote a very short letter addressed to Mr Cassidy in which she stated:

“In light of the non-response to my solicitor’s letter, dated 18/08/2022, concerning my resignation, I have no option but to regard my employment as terminated from 02/09/2022.”

The Complainant’s Evidence

The Complainant outlined her employment history with the Respondent and gave details of her illness, and the treatment she received for it from January 2021 onwards. She told the Court about her efforts to return to work in or around August 2021 and her offer to wear a face visor in circumstances where she was unable, for medical reasons, to wear a face mask. When the Respondent informed her that she couldn’t be permitted to return on that basis, she said she obtained a medical certificate from her General Practitioner for a further six months.

The Complainant’s evidence then turned to the lay out of the dispensary in which she had worked with two colleagues. She expressed her views in relation to what adjustments could have been made by the Respondent to allow her to return to work in the dispensary notwithstanding her inability to wear a mask. She said that Perspex screens could have been erected there to create individual workstations and/or colleagues’ presence there could have been staggered and/or she could have been allowed to do some of her work in the filing room. According to the Complainant, none of the foregoing options had been discussed with her.

The Complainant then went on to tell the Court that nobody on behalf of the Respondent had initiated contact with her by October 2021 so she then requested payment for her accrued annual leave. She said that her request was declined and the reason given by the Respondent was that no return to work date had been agreed. She made a similar request again on Christmas Eve 2021. She said that she also “threatened solicitors” on that date. The Complainant next referred in her evidence to the letter she sent to the Respondent on 24 February 2022 and her subsequent communications with Mr James Cassidy that led to her availing herself of the Respondent’s grievance procedure, including the appeal stage (on her solicitor’s advice). The Complainant said that having received an unsuccessful outcome from that process she formed the view that she would never be permitted by the Respondent to return to work, would not receive payment for her annual leave and lose her career. That realisation, she said, motivated her to resign her employment – which she did with effect from 2 September 2022. Her evidence was that she believed she had spent a whole year at that stage trying to return to her job but in that time her employer had not shown any concern for her condition. As a result of having no contact with her colleagues or her manager she said she felt “left out of everything and didn’t know what was going on”.

Under cross-examination, the Complainant said that she had declined to avail herself of Mr Cassidy’s offer of a referral to an Occupational Therapist for two reasons: she already had had access to more qualified medical specialists and the sole purpose of such a referral, in her view, was to get her to wear a mask. She was also asked by Counsel about what she had said in direct evidence about the changes she believed could have been made in the workplace to facilitate her return to work. In reply to questions put to her, she accepted that the dispensary is not a large area but pointed out that there are three separate workstations there although people are regularly required to pass each other’s workstations. The Complainant said that in her experience the health guidelines relied on by the Respondent were not applied at mealtimes when staff regularly sat around a table together without face masks. She also said colleagues shared lifts to and from work. The Complainant also gave examples of alternative work she believes could have been assigned to her including paperwork and filing for circa one day per week; processing deliveries in the stockroom on Thursdays and working in the central warehouse used by a number of pharmacies connected to the Respondent.

When asked by a Member of the Court about the medical exemption she had from wearing a mask, she confirmed that she never furnished this to the Respondent. She also said that she had declined to attend the Occupational Therapist because she felt the Respondent thought that she had been lying about her condition and was seeking to undermine the medical expertise she had already benefitted from.

Mr Cassidy’s Evidence

The witness told the Court that he is a qualified and experienced Pharmacist and a joint shareholder in, and director of, the Respondent. He is not present every day in the store in which the Complainant works as he has an interest in other pharmacy businesses also. The witness said that the Complainant had been an exemplary employee and a great asset to the Respondent – so much so that they had agreed to fund her qualification as a Pharmacy Technician.

The witness told the Court that the public health guidelines that were in place in August 2021 were to the effect that everyone should be wearing a mask in public. The situation had changed by February 2022 at which stage, he said, were that masks should be worn on public transport and in healthcare settings. The witness said he had been in regular contact throughout the relevant period with the Irish Pharmaceutical Union seeking advice on the application of the Guidelines. Counsel referred him to an email dated 9 August 2021 from Mr Derek Reilly, Head of Contracts and Professional Services with the Irish Pharmaceutical Union in which Mr Reilly provides a detailed commentary on the HSPC “Guidance on the Use of Surgical Masks in the Healthcare Setting”. The witness said that the Respondent’s client base included a very high percentage of very vulnerable people. It also had staff members who had lost family members to Covid. For those reasons, the witness said, it was important for the Respondent to observe a high duty of care to all customers and staff in the pharmacy.

When asked to comment on the Complainant’s evidence that the Respondent hadn’t reached out to her, the witness said that that as she was on certified sick leave, he didn’t think it was appropriate to contact her. He also said that all communication with the Complainant from a certain point onwards had been via email, at her insistence. The witness’s evidence was that he made a number of offers to meet with the Complainant in order to sort matters out as an alternative to her pursuing the legal route she had proposed in her correspondence. He referred to his request to her to avail herself of the Respondent’s grievance procedure and that fact that he facilitated her with a late appeal of the initial grievance outcome.

Counsel for the Complainant asked him about various measures that might have been put in place in order to facilitate the Complainant’s return to work but appeared never to have been discussed with her. Mr Cassidy explained that the layout of the dispensary, which is a relatively small area, contains three workstations and large table in the centre of the room. It would not have been possible, he said, to maintain a two-meter distance between the dispensing technicians at all times as they necessarily cross over each other many times per day in order to fill prescriptions. Therefore, in accordance with the advice received from the IPU, all personnel working in that location would have been required to wear a face mask, at all times. He also said that locating the Complainant in the Respondent’s filing room was not a viable option because she would still have had to enter the dispensary on multiple occasions each day – and in doing so, pass in close proximity to colleagues – in order to obtain medicines. Mr Cassidy also said that the distribution service was a separate business from the Respondent’s and it would not, therefore, be in the Respondent’s gift to create a job for the Complainant at that warehouse used by that service.

Finally, in response to a question from the Court, Mr Cassidy said that the Respondent had an acute shortage of trained pharmacy technicians and it would willingly re-employ the Complainant in that capacity should she wish to return to its employment.

Discussion and Decision

The originating complaint in this matter was referred to the Workplace Relations Commission on 22 February 2022. It follows that the cognisable period comprehended by the complaint is the period 23 August 2021 to 22 February 2022. The Complainant was on certified sick leave for all of this period. Although she anticipated she would return to work in September 2021 on the expiry of her certified sick leave at the end of August, the Respondent declined her request to return on the basis that had clearly flagged that she was unable to wear a face mask for anything longer than a few minutes. Her General Practitioner then renewed her medical certificate confirming that she was unfit to work due to Long Covid Syndrome for a further six months commencing 31 August 2021.

It follows that the height of the within claim is that the Complainant had no option but to continue her certified sick leave from 1 September up until the date of her complaint – 22 February 2022 – because the Respondent (from the Complainant’s perspective) had failed in its obligations to make the reasonable accommodation for her disability that would have permitted her to return to work during that period. Although the Complainant asserts that she was medically exempted from wearing a surgical face mask, she never provided the Respondent with a copy of that certification. She herself, when she engaged with the Respondent in late August 2021 about a possible return to work the following month, suggested that as an alternative to wearing a face mask she could wear a visor while working in the dispensary. The clear and uncontradicted public health advice was that a visor was not an effective means of preventing transmission of an airborne virus such as Covid-19. At that time. she did not suggest any other possible forms of accommodation that could have facilitated her return to work. In hindsight, and long after she had already written to the Respondent on 2 March 2022 advising Mr Cassidy that returning to work with the Respondent was not a viable option and seeking “a compensation package”, she suggested that, for example, Perspex screens could have been erected in the dispensary area, she could have been assigned to work in the filing room or in a shared distribution centre at a remote location. Mr Cassidy gave very detailed and credible evidence as to why none of these measures would have been feasible, even had it been possible to explore them prior to the date on which the Complainant referred her complaint under the Act. Mr Cassidy also told the Court that he did not think it appropriate to contact the Complainant while she was on certified sick leave.

In summary, it is clear to the Court that the Respondent, and Mr Cassidy, in particular had been and continues to be very well-disposed to the Complainant and regards her as a highly competent pharmacy technician that he would gladly re-employ now and would have facilitated her return to work – even after she had filed the within complaint under the Act – had it not been for the prevailing public health advice in relation to the very strict requirement regarding the use of masks in medical settings throughout the period under consideration.

For the foregoing reasons, the Court finds that the Complainant’s claim that the Respondent failed in its obligation to make reasonable accommodation for her disability is not well-founded. The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
10 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Cathal Nerney, Court Secretary.