ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00042654

Parties:

	Complainant	Respondent
Parties	Tina Maguire	Boots Retail (Ireland) Limited

	Complainant	Respondent
Anonymised Parties

Representatives

James Doran BL,

Dylan Macaulay Solr.,

Macaulay & Co Solicitors

Harry Wall IBEC

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00053074-001	02/10/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00053074-002	02/10/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00053074-003	02/10/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00053074-004	02/10/2022

Date of Adjudication Hearing: 04/07/2023, 16/10/2024, 22/01/2025, 23/01/2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn/affirmed oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and which has been opened up in the course of the hearing).

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.

Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has arisen regarding this obligation.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 2nd of October 2022) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disability (as detailed in Section 6 of the 1998 Act (as amended)). The unlawful behaviour complained of includes discrimination and a failure to give reasonable accommodation.

The Operative Section is Section 6 of the Employment Equality Act 1998 where: -

Sub Section (1) For the purpose of this 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 subsection (2) (referred to as the “discriminatory grounds”) …

Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…

(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …

The nature and extent of the Employer’s obligations, including the employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act 1998 (the “1998 Act”)

Section 16 (1), (2) and (3) provide as follows:

(1)Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’ ) being provided by the person’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(iv) the financial and other costs entailed,
(v) the scale and financial resources of the employer’s business, and
(vi) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability —

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’ s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act), which can include (where relevant) re-instatement or re-engagement.

Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :

“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.

Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant herself must establish facts which show that she suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that she has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.

Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

The Labour Court (and the WRC) have an established approach to this issue and the test for applying the section 85A burden of proof is well settled in a line of decisions of both bodies starting with the Labour Court’s determination in Mitchell v Southern Health Board ([2001] ELR 201):

“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-

“That since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

The Adjudicator must therefore determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of by the Complainant. This may include an element of objective justification.

In addition to the foregoing, the Complainant has brought separate complaints under a number of other pieces of employment legislation referred to in Schedule 5 of the Workplace Relations Act of 2015.

The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

The Complainant has brought another complaint as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.

The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of a change in any of the particulars of the statement as already provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.

Lastly the Complainant has brought a complaint of a contravention of The Organisation of Working Time Act 1997 and specifically a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:

4 weeks in a leave year in which the Employee has worked 1365 hours or more;

1/3 of a working week in each month that the Employee has worked in excess of 177 hours;

8% of the hours worked up to 4 working weeks

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i) Declare the complaint was or was not well founded;
(ii) Require the Employer to comply with the relevant provision;
(iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. Over the course of four days of hearing this said remote hearing was set up and hosted by appointed members of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I had additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation would be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Summary of Complainant’s Case:

The Complainant was fully represented by her legal team. The Complainant gave comprehensive evidence on her own behalf, and she made an Affirmation to tell the truth. I was provided with a comprehensive submission on the 31st of August 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the complainant was challenged as appropriate by the Respondent’s representative.

The Complainant alleges that she was discriminated against by reason of a disability. The Complainant is further alleging that the Employer herein failed to provide her with reasonable accommodation. A number of other complaints were also brought as outlined above.

The details of the Complainant’s complaints are fully set out in her workplace relations complaint form which issued on the 2nd of October 2022

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by statute.

Summary of Respondent’s Case:

The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with two written submissions dated July 2023 and September 2023. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. Oral evidence was provided JM the Employee Relations Partner, AM the Store Manager, MM the Area Manager and RN the Human Resource Team Manager. All evidence provided was heard following an Affirmation. The Respondent witnesses were cross examined by the Complainant representatives as appropriate.

The Respondent rejects that there has been any discriminatory treatment of the Complainant and is fully resisting the allegations of other employment rights contraventions.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced across several days of hearing. At the outset I am limited to considering the six-month period directly preceding the date on which the workplace relations complaint form issued – the 2nd of October 2022. That said, I was obliged to hear something of the pre-history between the parties to fully understand the issues which brought the Complainant to bring her complaints.

The Complainant has worked with the Respondent company since 2007. I understand that the Complainant continues to work with the Respondent company even as she had been prosecuting her claims before this body. It is a testament of the professionalism and mutual regard of both parties that this has been possible.

The Respondent employed the Complainant in a retail unit in Middleton, Co. Cork. There is no doubt that the Complainant has at all times been a very good Employee and has worked well with the Respondent company. By 2020 the Complainant was working as a Customer Healthcare Assistant. This is a front-of-house retail role.

Difficulties arose as a result of the Covid pandemic which started in March of 2020. As the Respondent provides a pharmacy function, it was deemed an essential service and was therefore one of the first retail businesses to open back up in the lockdown phase. The Respondent’s in-house face covering requirement was introduced on the 16th of July 2020. I note that the Government had, on the 14th of July 2020, issued a statement around the wearing of face coverings in retail settings which stated that:

The Government agreed today that face coverings should be worn by all customers in shops and shopping centres across the country. Retail staff will also be required to wear a face covering unless there is a partition between them and members of the public or where there is a distance of 2 metres between them and members of the public.

Regulations, with details on enforcement and penalties are in the process of being drafted.

The Respondent provided me with context in its submission stating that the spread of the COVID-19 virus and its impact on health was escalating at an exponential rate. Confirmed cases of COVID-19 had grown from 3,235 at the end of March 2020 to 91,779 by the end of December 2020. COVID-19 related deaths had gone from 71 at the end of March to 2,237 at the end of December. Level 5 restrictions were introduced on 21 October 2020, meaning all members of the public were advised to stay at home except for travel to work, education or other essential purposes. Non-essential retail remained closed and household visits were not permitted. These restrictions remained in place for six weeks.

As I understand it, the Complainant never wore a facemask at work. This fact only came to the attention of the Pharmacist Store Manager AM in and around late September 2020. There was, by then, she said a requirement on all employees to wear facemasks in line with Government policy and the in-house face coverings policy. There was an expectation that all employees of the Respondent were required to wear a face covering and the Respondent had provided grade IIR masks for all retail staff. Staff were aware (in accordance with the policy) that any person who had any difficulty with wearing a mask should contact their manager or their doctor. The Complainant had not raised any issue at any time.

AM brought the Complainant to her office on the 6th of October 2020 to discuss the need to wear face masks. The Complainant said that she explained that she sometimes wore a visor and that, in any event, she was serving customers from behind a perspex screen. The Complainant explained that she was unable to wear a mask as covering her face caused her anxiety and panic. The Complainant stated that AM had said that shewas endangering the staff and that she had to wear a mask. The Complainant was affronted at this suggestion. AM took advice and came to the conclusion that the Complainant must go home. The Complainant was very upset at this outcome as she did not want to leave her job. The Complainant was told that she must remain out of work, in receipt of pay, until an assessment could be arranged with the company occupational health service. The Complainant was therefore on some sort of paid leave period awaiting an assessment. For the avoidance of doubt, I do not classify this decision as a formal suspension as might be used in a disciplinary/investigation setting. This was a reactionary decision made in response to a particular and unprecedented set of circumstances - the Covid pandemic.

The Respondent has pointed out in its submission that:

The Covid-19 vaccination programme in Ireland did not commence until 29 December 2020 and in its initial stages, vaccination was restricted to nursing home residents and healthcare workers. It was not until August 2021 that all approved age groups became eligible to receive their first dose under the Government’s vaccination programme. For this reason, the use of measures to stop the spread of the virus including social distancing, hand washing and the use of face coverings was of critical importance.

In November 2020, the Government (in consultation with trade unions and employer representatives) published the Work Safely Protocol (copy at Appendix 7). The purpose of this protocol was to set out guidance for employers and workers on the measures to be adopted to ensure the safe operation of workplaces and prevent the spread of COVID-19. The protocol stated that “employers must… provide advice on good respiratory practice including the safe use, storage and disposal of face masks/coverings and the safe cleaning of face masks/coverings” and “employees must… follow good practice on the safe use, storage, disposal and cleaning of face masks/coverings.”

The Respondent face covering and PPE policy had been further updated in October 2020 to take account of new guidance issued by the Health Protection Surveillance Centre Antimicrobial Resistance and Infection Control (AMRIC) Division of the HSE. The policy made it mandatory for all retail-based employees, whether working on the shop floor or in “backshop” areas to wear a Type II or Type IIR 5 surgical type face mask. This applied to the Complainant and all other employees of the Respondent.

The Respondent arranged for the Complainant to take part in a telephone consultation with the company occupational health advice specialist who in turn issued a report dated the 16th of October 2020. The Report noted:

Ms Maguire has been referred to occupational health due to being unable to wear a surgical R2 mask at work. I carried out a telephone assessment today…

Ms Maguire confirmed that she feels unable to wear a mask or face covering at work and at the present time is using visor face protection. Ms Maguire informed that wearing a face mask causes her to experience a high level of anxiety and panic symptoms and feeling lightheaded. Ms Maguire advised that she does not feel comfortable with anything around her head area including jewellery, earrings etc and feels unable to tolerate the masks currently provided for use due to the current Covid 19 pandemic.

Ms Maguire advised that she is presently at work, and apart from having issues wearing a mask does not have any other work-related concerns.

Opinion:

Employers have a legal obligation to follow government guidance and legislation to create and maintain a safe work environment for other employees, clients, customers etc. In relation to Covid 19, this obligation includes carrying out a risk assessment to identify work activities or situations that might cause transmission of the virus, considering who could be at risk, likelihood of exposure, removing the activity or situation, or if not possible, controlling the risk.

If an individual has difficulty wearing a mask due to any underlying medical or mental health condition it may be helpful to try a different brand/type or fabric to assess if these are more acceptable and tolerable. If employers are distributing (or buying) face coverings, they should be produced in line with National Standards Authority of Ireland (NSAI) specifications.

In relation to wearing a face visors: studies have shown visors are much less effective than properly used masks as they do not create a seal.

Advice to employee:

I have also suggested that Ms Maguire contacts the company EAP service for support in relation to her anxiety symptoms wearing a mask at work. Occupational Health Advisor Employee has requested a copy prior to their employer…

The specialist had therefore noted that in relation to Covid-19, there was an obligation on the Employer which included carrying out a risk assessment to identify work activities or situations that might cause transmission of the virus, considering who could be at risk, likelihood of exposure, removing the activity or situation, or if not possible, controlling the risk. The report noted additionally that Covid-19 recommended advice at that time, in October 2020, was that all staff in retail settings were to wear face coverings when in an environment that exposed them to close interaction with people. The report noted that studies had shown visors to be much less effective than properly used masks as they did not create a seal. It was noted additionally that where an individual has difficulty wearing a mask due to any underlying medical or mental health conditions it may be helpful to try a different brand/type of mask, or a different fabric to assess if same would be more acceptable and tolerable.

The Complainant said that she was asked by the Health Advisor whether she could work her way around the phobia to which she replied she could not. This was and has always remained a hard no.

In response to this report the company set about the process of having a risk assessment carried out on the Complainant’s presence in the workplace while not wearing a facemask. AM wrote to the Complainant proposing an online risk assessment. In a letter dated November the 27th 2020, she stated :

The purpose of the risk assessment is to discuss your personal circumstances with respect to the wearing of PPE in the workplace, whilst considering the different hazards in the workplace from a COVID-19 perspective and the control measures that have been put in place by the Company. During the risk assessment we will discuss the following areas (where appropriate):

• Dispensary/Healthcare area

• Tills

• Operations/Delivery/Stock room

• Beauty/Fragrance/Premium

• Office based tasks (management meetings, cash duties etc)

• Back shop activities (bathroom, locker room, canteen etc)

I accept that the Respondent endeavoured to engage with the Complainant to schedule the risk assessment as advised by the occupational health specialist. This proved extremely difficult as the Complainant was anxious to understand what this might entail. Despite writing to the Complainant on numerous occasions (the Complainant had requested communication in writing rather than by telephone) the Complainant declined to take part in the risk assessment. The Complainant requested a meeting in person despite AM having made it clear this was not possible due to the Complainant’s refusal/inability to wear a face mask. The Complainant asked for “findings of the risk assessment” before the assessment had been conducted. As her email of early December 2020 demonstrates, the Complainant was asserting some sort of nefarious agenda on the part of her Employer:-

Hi anna just to let you know I'm not comfortable with how you want to conduct the risk assessment. I am willing to meet you in the shop in your office with a copy of the questions provided for me also, and we can discuss what needs to be done for my return to work.

If this does not suit i really don't know where to go from here. if I'm to return to work i can't see the problem, i will have a face covering and keep social distance otherwise i don't know what to do as when i return we will be working together socially distanced anyway unless there’s another agenda that I'm not aware of but starting to feel this as i am now in my second month without resolve I'm available for work as i always have been thank you

[The Complainant]

Of note is the fact that in yet another letter dated the 28th of December 2020 to the Complainant outlining the ongoing need for a risk assessment (and the seeming refusal to partake in one) the Complainant was also advised that:

from 1st January 2021 you will move from pandemic absence to sick leave, in line with the company sick pay policy (please find attached).

This is a crucial point as the Complainant says she was not and never should have been put onto the company sick pay policy as she says she is not sick and had not been medically assessed. For me this has always seemed counter intuitive in circumstances where the complainant is certainly asserting that she has a disability for the purpose of the Employment Equality Acts. The Respondent rationale for directing the Complainant towards sick pay status is as a consequence of a condition which gives rise to panic attacks and or anxiety if the Complainant has to wear face masks.

The Respondent states in its submission:

It is critical to note that the Complainant did not submit any information relating to an alleged disability to the Respondent at this stage and the Respondent was acting on the medical advice of the company occupational health specialist. The Respondent had made every effort to engage with the Complainant and carry out the recommended risk assessment, acting at all times on the basis of the medical advice received. Again, it is important to emphasize that at this juncture no medical evidence had been submitted by the Complainant to support any medical condition which would prevent her from wearing any face covering.

The Respondent was ultimately relying on its own occupational assessment which stated that wearing a mask caused the Complainant “to experience a high level of anxiety and panic symptoms and feeling lightheaded.”

The Complainant never resiled from this diagnosis, and that is how and why the Complainant came to be described as having a disability without perhaps having to establish that there was a medical diagnosis.

I understand that a Risk Assessment was finally carried out on the 16th of February 2021. This was four months after the Occupational Assessment. This was done over the phone with AM. I have read through this comprehensive discussion, and I am satisfied that a wide range of issues were discussed, and that the Complainant was given every opportunity to make suggestions on how she could return to the workplace. The Complainant and AM mulled over every role and task which needed to be performed. I know that for the Complainant that it seemed as if every suggestion was batted back with what seemed like very little consideration. In fact, I would suggest that AM had already thought about every conceivable option and had not been able to find a workable option.

Objectively I appreciate that there was no indoor scenario where the Complainant could operate maskless without exposing others. These were fraught times. There was a pandemic. I absolutely accept that in a quasi-healthcare setting such as a pharmacy it would be unacceptable to have members of staff seemingly flaunting the Government guidelines on Mask wearing. I know that’s not what would be happening here, but that is absolutely how it would be perceived by members of the public who are the end-users of the is retail provider. There is to my mind simply no way around this.

The alternative of providing a placement in the workplace which would not be public facing was also looked at. Again, I understand that this was problematic. It was difficult to see how this would operate safely and without causing worry to colleagues and perhaps even attracting the ire of colleagues. The Complainant did not accept or understand that her un-masked presence in the workplace was a liability for the Employer in the event, for example, of a Covid outbreak in the workplace. At no time in the course of her evidence did I get the sense that the Complainant ever had an insight into the difficult situation the Respondent was in if an unmasked Complainant was in the workplace .

It it’s submission the Respondent set out what happened with the Risk Assessment conducted with AM and the Complainant as follows:-

The completed risk assessment was sent to a review panel of the Respondent to consider from a health and safety point of view. The review panel consisted of the Director of Pharmacy, Head of Stores, Head of Human Resources, Professional Standards Manager and an Employee Relations Partner. In turn the review panel assessed footfall in the Complainant’s store in terms of both footfall of colleagues as well as patients and customers. The panel reviewed the duties of a health care advisor, and equally those of a customer assistant as a potential alternative role. The panel considered how the Complainant could enter the store, manage lunch and bathroom breaks and manage moving between different sections of the store. The panel considered the suggestions put forward by the Complainant in detail. The panel considered the risks to the Complainant, to the customers (some of whom by definition would be medically vulnerable) and colleagues. The panel reached the conclusion that 2-metre social distancing could not be guaranteed. The panel considered that no other vacancies were available at that time. The panel also took the medical opinion provided in the assessment of 16 October 2020 into consideration. When all of these factors were taken into consideration, the decision was reached that the Complainant could not safely return to work at that time whilst unable to wear a face mask. It was ultimately not possible to safely return her to work at that point in time. Ms McC subsequently wrote to the Complainant on 11 March 2021 to communicate the outcome of the assessment.

In May of 2021 the Complainant wrote to her Mandate representative who sent a letter to the HR Operations Manager of Boots Ireland (RN). The Complainant through this representative was asserting that:

“In this instance the company have so far failed to furnish Ms. Maguire with any reason for the refusal to allow her return to work nor has an objective justification been given as to the decision to refuse her permission to return to work.”

To my mind this was a seemingly wilful misunderstanding of the history herein. The Complainant could not and would not wear a face mask and therefore could not be in the workplace. The situation had been looked at from every conceivable angle and there was no solution that would allow the Complainant return to the workplace without a facemask.

At the same time the Complainant wrote a moving letter to Mr. W (SW) about her plight.

In any event the HR Operations Manager RN was tasked with the job of corresponding with the complainant to reassure her that as Government policy was being monitored so too would her position be assessed.

It is also worth noting that RN wrote to the Complainant in a letter of September 17th, 2021, that the Complainant was told:

I also wish to address the points raised by you in your letter to SW, Managing Director, where you outlined your dissatisfaction with the way the matter has been handled by AM, Store Manager. I wish to refer you to the Boots Dignity at Work and Grievance Policy, as mentioned earlier, which outlines the options open to you should you wish to engage with the company internal grievance procedures. The policy also outlines who you can speak to if you do not wish to speak with your store manager or Area manager.

I must therefore assume that the Complainant was on notice (from this point on) of her right to raise any complaint and/or grievance she might have had. It is worth noting that the Complainant’s Mandate representative was also CC’d on this letter.

RN wrote again to the Complainant in January 2022 inviting the Complainant to communicate with her Employer to discuss the potential of a safe return to work in the near future. In this letter dated 6 January 2022, RN proposed a trial of a foam mask under the Type IIR surgical mask as a possible alternative for the Complainant, given that the occupational health specialist had recommended trialling different materials to wear with the IIR mask. RN also proposed a meeting with Ms AB who was covering as Store Manager in the Complainant’s store in Midleton during AM’s maternity leave. In addition, Ms RN suggested that the Complainant be accompanied by her union rep at any meeting with AB as part of the return-to-work discussions. Ms RN also directed the Complainant to the Respondent’s employee assistance programme

As it happens, Government guidance regarding mandatory wearing of masks in retail settings was changed on foot of a letter from the CMO to the Government on 18 February 2022, with the lifting of the mask mandate to take effect from 28 February 2022. Considering this revised guidance, AB (the store Manager) gave evidence of attempts to make contact with the Complainant on a number of occasions to discuss her potential return to work and for the purpose of conducting a new risk assessment to allow for the safe return to work. The Complainant made requests in relation to the proposed assessment, namely that it be held in person and that she be accompanied by a representative. AB acceded to both requests stating also that another store Manager AS would now conduct the assessment. Despite the best efforts of the Respondent personnel to meet with the Complainant at this time, to discuss her return to work, it was not possible to arrange the risk assessment appointment with the Complainant. I have seen the correspondence in this regard all of which appears to have largely emendated from the Respondent from February 2022 until the 27th of June - at which time the Complainant wrote to the HR Manager in Boots stating that that she had been wronged by her Employer.

The Complainant alleges in this hand-written letter that she has been left unpaid for eighteen months. The Complainant describes being at a financial loss. The Complainant asserts that she feels intimidated and threatened by the Company and that there have been efforts made to terminate her employment illegally.

To my mind this letter from the Complainant is out of kilter with all previous correspondence and interactions.

In the response drawn up by RN (in a letter dated the 7th of July 2022) she goes through the chronology of events including the decision made by AM ..that it was not possible for you to safely return to work as you were unable to wear a mask as required in a retail healthcare setting. It was noted that the Employer kept in touch with the Employee throughout the period. Options were kept under review, and the introduction of the Mandate representative into the conversation was met with equanimity. It was further noted that in a letter of 26th of April 2022 the Complainant was asked to attend a return-to-work assessment meeting and was also invited to bring her Mandate Rep if she so wished. RN stated that it was important to highlight that the company have continued to engage with you throughout your absence and in particular since updated public health advice was issued on 28th February 2022 to discuss the possibility of her returning to work. I would encourage you to engage with the company in this respect.

However, clearly the Complainant felt that she had not been treated appropriately or fairly, and the Company invited the Complainant to meet with the Area Manager MM to discuss her options which included the concerns raised in the letter of complaint dated the 27th of June. I am aware that MM followed up with this on the 15th of July 2022 and the 29th of July 2022 hoping to schedule an informal meeting at the Complainant’s earliest convenience. Despite the informal nature of the meeting, MM even agreed that the Mandate representative could also attend.

RN gave evidence that much of the delay in getting the Complainant back to work was the presentation of barriers put up by the Complainant herself. RN noted that she had many other Employees out during Covid but that the Complainant was the only one she had direct contact with.

The Complainant finally met with MM on the 31st of August 2022. The Complainant raised a number of legitimate questions about her employment and was advised by MM in an email (on the 31st of August) that a formal complaint could be raised and investigated on the Complainant’s return to work. RN had already pointed out that the employee handbook advises that issues of concern should be raised with a Line Manager or an Area Manager in the first instance (per her letter dated the 24th of August 2022). There is nothing in the correspondence which purports to block the Complainant from raising any issue she wishes to. In fact, RN categorically states in the said letter dated the 24th of August 2022 that MM is also available to discuss all the concerns raised, as well as to conduct the return-to-work assessment. As noted, MM confirms that the issues raised around the duty of care owed to the Complainant could be formally investigated on the return of the Complainant to the workplace. He pointed the Complainant in that direction.

MM agreed that he became involved by nomination to oversee the Complainant’s grievance. He noted that the Complainant was known to him. He confirmed that he gave her the Grievance /Dignity at work Policy which had previously been given to the Complainant. His evidence was that the Complainant said she would come back to him on the complaints/grievances that she had, but she never did. He noted that if the Complainant had made herself available in February of 2022 she would have returned to work much earlier than she had.

MM did conduct a new risk assessment with the Complainant as it was agreed that she would be able to return to work in a safe manner, given the revised guidance around mask wearing in retail settings. The Complainant returned to work on the 5th of September 2022.

The Complainant lodged workplace relations complaint form on the 2nd of October 2022.

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

CA-00053074-002

On balance, I cannot find that the Respondent herein has not provided me with sufficient objective justification to displace any allegation of discriminatory treatment on the part of the Complainant.

From the outset, the Complainant has asserted an inability to wear a face mask. This has not been particularly challenged and has therefore been given the status of a disability for the purposes of the Employment Equality Acts. There is no medical evidence but an attempt in final submission to blame this on the Complainant gains no traction with me. The Respondent accepted the Complainant’s position without challenging the veracity. This cannot be criticised after the event.

Against the backdrop of a worldwide pandemic this meant that the Complainant was not allowed to continue to work in the Respondent workplace from mid-2020 to the start of 2022 when facemasks were mandated to be worn in retail settings. To my mind this amounts to an objective justification for treating the Complainant differently to another Employee for whom the wearing of a mask is not a problem. Other bespoke arrangements were considered, but none worked. It is an unfortunate fact that no reasonable accommodation could be given which would not cause upset amongst customers and/or co-workers. The Complainant did not seem to accept that there was a health risk and/or a perception of a health risk. The Complainant never seemed to get this fact and simply believed she was being prevented from working as some sort of belligerent act on the part of her Employer of 17 years.

In assessing the evidence, I have to find that the Employer did not in the circumstances discriminate against the Complainant in contravention of the Employment Equality Acts.

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

CA-00053074-001

The Complainant was on fully paid leave from October 2020 to the start of February 2021. At that time the Complainant went on to the sick leave policy which when expired allowed the Complainant to be on the state sick pay scheme. I am satisfied that the complainant’s condition meant that she was not in a position to present for work in the usual way. It was entirely appropriate that she be put onto sick leave policy by reason of the medical condition/disability she unexpectedly presented with. The Respondent asserts that no deduction was ever made. The Respondent also asked me to consider that the Complainant’s claim is manifestly out of time. The cognizable period is the 3rd of April 2022 to the 2nd of October 2022. As it happens this was a period of time that the Complainant should have presented for work as the face mask ban had been lifted.

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

CA-00053074-003

I do not accept that the Complainant was suspendedin the punitive manner being alleged by the Respondent. Half the country was laid off at this time

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053074-004

The Complainant was paid all Annual leave to which she was entitled and which accrued to her.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

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

CA-00053074-001 – The complaint herein is not well founded and fails.

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

CA-00053074-002 - The Complainant was not discriminated against, and the complaint herein fails.

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

CA-00053074-003 – The complaint herein is not well founded and fails

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053074-004 - The complaint herein is not well founded and fails.

Dated: 17th of June 2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: