Complainant

Respondent

Parties

Dikeledi Nkele  Mushapho

Rose Finlay Pharmacy (Tullamore) Ltd

Representatives

Conor McCrave, Setanta Solicitors

Hugh Hegarty Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00071383-001

07/05/2025

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

CA-00072089-001

03/06/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The respondent’s representative telephoned the WRC approximately 15 minutes prior to the start of the hearing to inform the staff of the WRC that he would not be at the hearing as he had a family issue to attend to. He indicated that he would be seeking an adjournment.  He was informed by staff of the WRC to attend the hearing.  The respondent did not attend the hearing of this matter.

The respondent was notified of the complaints in May 2025.  The respondent’s representative also came on record in May 2025.  Substantive submissions were received from the complainant and copied to the respondent in July 2025.  However, neither the respondent nor their representative have engaged with the adjudication procedure since coming on record.  No response was received to either the complainant’s submissions or to the hearing notifications that were sent.  Despite being requested to do so, no list of attendees was provided by the respondent in advance of the hearing to the WRC.    

In order to facilitate the attendance of the respondent or an alternative person from the firm representing the respondent, the start of the hearing was delayed for 15 minutes.  No alternative staff member attended the hearing.  The respondent did not attend the hearing and provided no reason for their nonattendance.

In circumstances where the respondent has not engaged with the adjudication process, although being aware of it for more than 12 months, and following the normal procedure where a respondent does not show up to a hearing, the hearing proceeded in the absence of the respondent.  

The complainant gave her evidence under affirmation. 

At the completion of the hearing, I took the time to review all the oral evidence together with any written submissions made by the parties. The position of the complainant is, and a broad outline of the evidence, and clarifications sought, is provided.  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…”.

The complainant submitted that she commenced a role as a supervising pharmacist on 12 November 2024. She submitted that she was managing her team successfully through the busy Christmas and received a lot of positive feedback from the owner of the business. However, she submitted that following the disclosure of her pregnancy on 18 February 2025, her treatment in the workplace changed markedly. Within 5 weeks she experienced a sharp decline in how she was treated culminating in her dismissal on 28 March 2025. The complainant submitted that she believes that this sequence of events constitutes discriminatory treatment on the grounds of pregnancy and potentially amounted to unfair dismissal under the relevant legislation.

The complainant submitted that following her pregnancy disclosure she was subjected to increased micromanagement and scrutiny. An external consultant was brought in, and she later learned that he had been instructed to assess her performance, rather than to support the team she was initially told.

The complainant submitted that she was not given a fair opportunity to respond to alleged performance concerns or to demonstrate her capabilities. She was asked to accept a demotion with a pay cut which she believed was unjustified and directly linked to her pregnancy. When she refused to accept that demotion, she was summarily dismissed with only four weeks’ notice and no due process.

The complainant submitted that the meeting regarding her proposed demotion was conducted in a public setting in a nearby hotel lobby.  She submitted that prior to disclosing her pregnancy, no concerns were raised about her performance and her experience in the role had been entirely positive. She stated that she received no prior warnings either verbal, written or informal.

The complainant submitted that there was a rapid shift in her treatment, without any prior documented concerns, strongly suggesting that her pregnancy was the catalyst for the demotion and dismissal. The speed and nature of her dismissal and the hostile environment created after her disclosure left her emotionally distressed and mentally exhausted. She stated that she believed she was treated less favourably because she was pregnant and that her dismissal was discriminatory, unfair and procedurally flawed.

The complainant submitted that the right to appeal was referenced in the employee handbook and in the dismissal letter dated 28 March 2025, however there were legitimate reasons for not pursuing an internal appeal. The handbook stated that appeals should be made to the floor manager or supervising pharmacist, the floor Manager was on maternity leave and the complainant herself was the supervising pharmacist. Therefore, there was no appropriate or neutral figure to hear her appeal. The only individual available to receive the appeal was the same person who issued the dismissal who was also the person who attempted to demote her after she indicated that she was pregnant. The dismissal letter instructed the complainant to appeal to an unnamed person simply referred to as “X" within 5 days without identifying who that person was or how the process would work. The complainant submitted that the lack of clarity made it impossible for her to engage in the appeal process. She also submitted that there was no follow-on or support after the five-day deadline.

The complainant submitted that following her dismissal she was pregnant and the prospect of re-engaging with her employer, particularly person who dismissed her, was emotionally distressing having already been humiliated in public and at meetings including in the presence of a third-party consultant. The complainant submitted that she did not feel safe returning to that environment.

The complainant also noted that the employer failed to follow any formal disciplinary process with any performance concerns, all of which are standard components of fair procedure.  The complainant submitted that the exact reason for dismissal was not stated in the dismissal letter.

Complainant Evidence:

The complainant outlined her employment history indicating that she started work on 12 November 2024 and was dismissed on 28 March 2025.  She stated that she informed her employer of her pregnancy on 18 February, thinking that she was working in a supportive environment.  On 3 March the employer indicated to her that she was disappointed in her performance.  On 7 March a consultant who first appeared on 21 February was engaged to assess her performance.  She indicated that she had been carrying on the role of multiple staff in the absence of the support pharmacist, who had resigned, and the Floor Manager, who was absent on maternity Leave.  The complainant stated that the replacement locum pharmacist was on in situ for two days a week rather than the hours that were previously done by the support pharmacist.

The consultant disagreed with this assertion.  The complainant submitted that the consultant seemed to take an unusual position in that he used language such as “I am disappointed in you“, indicating a personal interest rather than a professional stance on matters.  As regards the consultant the complainant indicated that the consultant was initially supposed to be engaged to look at efficiencies in the retail outlet and she understood that he was coming to support her role and to make the pharmacy more efficient and compliant with the legislation.

The witness noted that on 28 February she did not make it back to work at an early time following a prenatal appointment and her employer was not happy.  When she returned, she worked later into the evening in an attempt to mitigate the delay in returning.  She stated that she had missed the cutoff point for ordering medication and that this was used against her as a point of incompetence.

She stated that the conversation of 3 march was quite belittling and intimidating.  She stated that number of supposed failings were put to her but that some of the blame was unwarranted, e.g. the Standard Operating procedures which needed to be updated by the owner were not done and the complainant was blamed when it was the owner’s responsibility to do so.

The complainant stated that on 7 March, the consultant returned.  The respondent had pre-booked a locum pharmacist which demonstrated that she was aware of the nature of the meeting. The complainant stated that the meeting felt like an ambush, they put her chair at the back of the room and were sitting up front.  The respondent listed out all the mistakes she made the night she stayed later.  The complainant stated that she was not told in advance that she had the right to be accompanied to the meeting nor what it was about.  She stated that she arrived early for work but that the owner and the consultant were already there.  She stated that it was never explained to her what the consultant was doing there.

The complainant received an email the following day outlining all the tasks she was supposed to achieve but noy giving her a timeframe for completion of the tasks.  The complainant referred to the Audit Report produced by the consultant, which was provided to the WRC, and noted that there were no specific improvements identified in the report and that these were being attributed to her lack of achievement.

In response, and out of frustration, the complainant respondent to the productivity consultant emphasising her competence and mentioning the mental health difficulties associated with the pressure on her during her pregnancy.  The witness was asked by her representative why the productivity consultant was writing to her and replied that the respondent seems to have given over the responsibility for staffing issues to the consultant.

The complainant stated that it appeared that she was now being micromanaged in order to get her to leave. She stated that on 21 March, she was called into a meeting with the owner when she was due to be on her statutory breaktime.  The owner indicated to her that she was still not happy with the complainant’s progress and that she should move to the support pharmacist role.  The complainant noted that the meeting was held in a public place, and she felt she could not show emotion. She stated that she had no forewarning regarding this meeting, was told to meet her during lunchtime and was also told not to discuss the matter with any staff members. She stated that she found it intimidating, she had just been dismissed in a coffee shop in a hotel. She stated that she was not able to take the lunch break due to having had the meeting and was required to return to work when it was over.

The complainant stated that she sent an e-mail afterwards seeking reasons and in response received an e-mail indicating she would be dismissed if she didn't accept the demotion. The complainant did not accept the demotion. She confirmed that she did not lodge an appeal as appealing letter did not specify to whom an appeal should be lodged. She also cited the handbook pointing out that there was no credible option for her to appeal.

Complainant stated that the termination of her employment arose 5 weeks after disclosing that she was pregnant and following a period where she was told that she was doing a good job and was in train for a pay rise. She stated that the numbers for the business were good and we're rising from the date of her appointment.

By way of clothes the complainant indicated that there was an immediate change after she disclosed her pregnancy, she was demoted, received a cut in salary, received a cut in hours, and that no process was followed. It was submitted that this was a discriminatory dismissal on the basis of her gender.

Caselaw cited:

Gender/Pregnancy Discrimination

·       Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus ECJ C-177/88 [1990] ECR I-3941,  

·       McGarvey v Intrum Justitia, (EDA095)

·       Brown v Rentokil,  [1998] ECR I–1485

·       Paquay v Société d'architectes Hoet + Minne SPRL, Case 406/06 ECR 2007 I–8511

·       Gardiner v Mercer Human Resource Consulting, DEC/E/2006/007.

·       Trailer Care Holdings Ltd v Healy, (EDA128)

·       O’Brien v Persian Properties t/a O’Callaghan Hotels, DEC-E2012-010

·       Campbell v Bank of Ireland Private Banking, DEC–2013–046

·       Keenan v Stephen Kehoe t/a Mortgage Cabin, DEC- E2012 -105

·       Gacek v Pagewell Concessions (Ilac) Ltd trading as Euro 50 Store, DEC–2015–29

Burden and Standard of Proof & Quality of Evidence:

·       Mitchell v Southern Health Board, [2001] ELR 201

·       Melbury Developments v Arturs Valpeters, EDA0917

·       A Company v A Worker,  ED/01/1

·       Trailer Care Holdings Ltd v Healy, EDA128

·       Assico Assembly v Corcoran, EED 033/2003

·       Maneewan Seesan v Thai Thanie Ltd DEC–E2008–073

·       Lee t/a Peking House v Fox, ED/01/53

·       Herco Investments Ltd v O’Sullivan, EED0316/2003

·       Nevins, Murphy, Flood v Portroe Stevedores Limited, 2 [2005] ELR 282

·       Ger Lally & Associates v A Worker, EDA 1314

·       Croc’s Hair and Beauty v Helen Ahern EDA195

Comparator:

·       Henry Denny v Roha. EDA1310

Redress:

·       Von Colson v Land Nordrhein – Westfalen, [1984] ECR 1891

·       O’Shea v HSE, ADJ-00024740

·       Danosa, [2011] 2 CMLR 45

·       Nolan v Gino’s Italian Ice Cream Ltd. EDA2017

The respondent did not attend the hearing of this matter.

The complainant took a case under the Employment Equality Act that she was discriminated against and ultimately dismissed on gender grounds when she revealed to her employer that she was pregnant. She submitted that she enjoyed a good working environment with her employer over what was a busy Christmas period and afterwards received compliments from both her employer and customers.

After disclosing her pregnancy to her employer, the working environment became difficult when she was micromanaged, and complaints were made against her.  She was not informed of the complaints or allowed to provide reasonable responses to the allegations made against her.  She was threatened with dismissal if she did not accept a demotion which would have resulted in a significant loss of income for the complainant.  She did not accept the demotion and was subsequently dismissed.  She submitted that the treatment and dismissal was discriminatory in nature.

The complainant cited a number of important cases in relation to pregnancy related dismissal.  In one of the cases, that of Intrium Justicia v McGarvey (EDA095), the Labour Court outlined the following:

“It is settled law that special protection against dismissal exists during pregnancy. Only the most exceptional circumstances not connected with the condition of pregnancy allow for any deviation from this. It is equally settled law that the dismissal of a pregnant woman (which can, obviously, only apply to women) raises a prima facie case of discrimination on the gender ground. Once such a case has been raised the burden of proof shifts and it is for the respondent employer to prove that discriminatory treatment on the stated grounds did not take place.”

Although not detracting from the other case law cited, the foregoing provides a succinct overview of the position of the Courts with reference to pregnancy-related dismissal in general. 

The European Court of Justice (ECJ) held in the case of Dekker -v- Stichting Vormingscentrum voor Jong Volwassen (Case C-177/88) that unfavourable treatment as a result of or connected to pregnancy is direct discrimination on the grounds of gender. It later held, in Mary Brown V. RentokilInitial UK Ltd (formerly Rentokil Ltd) (Case C-394/96), that the entire period of pregnancy and maternity leave is a protected period during which both the EU Equal Treatment Directive and EU Pregnancy Directive prohibit dismissal on grounds of pregnancy and dismissal of a pregnant employee during that period can only occur in exceptional circumstances unrelated to pregnancy or maternity.

In reference to the burden of proof, it is sufficient for a complaint to establish that she was pregnant and that a dismissal occurred to shift the burden of proof onto a respondent to rebut.  The complainant came across as a credible witness. The respondent did not attend the hearing of this complaint and did not provide any submission to the WRC.  Therefore, no exceptional circumstances were provided which were unrelated to the complainant’s pregnancy to explain her dismissal.  Accordingly, I find that that the complainant has established that she was discriminatorily dismissed in circumstances where she was pregnant.

Particular regard has also been given to the case of Von Colson v Land Nordrhein – Westfalen, [1984] ECR 1891 which provides that compensation for economic loss need to be a real deterrent against future infractions and to the Labour Court’s decision in the Nolan v Gino’s Italian Ice Cream case, EDA2017 which determined the following:

“In assessing the level of compensation to be awarded, the Court has regard to the observations in the case of Case 406/06 Paquay v. Societe d’architectes Hoet +MinneSPRL (2007) ECR 1-8511 that the requirements of redress should ‘guarantee real and effective judicial protection and have a real deterrent effect on the employer’”.

The complainant’s salary amounted to circa €100,000 per annum. Taking all the factors into account, I am satisfied that an award of €50,000 is appropriate in all the circumstances of this complaint.

Having considered all the written and oral evidence presented in relation to this matter, my decision is that the complainant was discriminatorily dismissed on the grounds of her pregnancy.  Arising from the foregoing, I award the complainant €50,000 compensation which is appropriate in all the circumstances of this complaint.

Employment Equality – Pregnancy related dismissal – discriminatory dismissal established – award of compensation