Carroll (Represented by Wesley Farrell BL, on the instructions of O'Hanrahan Lally, Solicitors) AND Dublin Bus
1.1 This dispute concerns a claim by Mr John Carroll that he was discriminated against by Dublin Bus on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 - 2004 when he was given less favourable entitlements under an occupational injury scheme than would be awarded to an employee who suffered injury as a result of an assault. The complainant also made a claim for equal pay, a claim under an equality clause and a claim in relation to a collective agreement.
1.2 The complainant referred a claim to the Director of Equality Investigations on 9 June 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 16 March 2004 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 1 April 2005. Subsequent correspondence with the parties concluded on 16 May 2005.
2. SUMMARY OF THE COMPLAINANT’S CASE
2.1 The complainant was employed as a driver by the respondent in 1994. On 29 November 2002 he suffered an injury at work which resulted in him being unable to work because of groin and lower back problems. As a result, he was paid under the provisions of the respondent's Welfare Scheme, which provides sickness benefit for 26 weeks as follows: in addition to any benefit payable under the Social Welfare code, an employee receives (a) 100% of basic weekly wage for the first four weeks, (b) 70% of basic weekly wage for the next eight weeks, and (c) 60% of basic weekly wage for the next 14 weeks. Payment ceases at this stage.
2.2 The complainant said that if his injury had been sustained as a result of an assault, he would have received benefits under the provisions of the respondent's Assault Pay Scheme. This would have given him 26 weeks' full pay, with a possible extension for a further 26 weeks. An assaulted employee unfit to resume duty after 12 months is then placed on the respondent's Welfare Scheme.
2.3 The complainant claimed that the distinction made by these schemes constituted discrimination on the ground of disability in relation to his terms and conditions of employment, contrary to section 8 of the 1998 Act. He said also that the schemes were part of a discriminatory collective agreement, and therefore null and void in accordance with section 9 of the Act. He further claimed that he and employees who benefited from the Assault Pay Scheme were carrying on like work as provided for in section 7 of the Act, and that the failure to provide him with equal pay was contrary to section 29 of the Act.
2.4 The complainant said that section 6 of the Act provided that discrimination is taken to occur where one person is treated less favourably than another on any one of nine grounds, including disability. The Act stated that the description of the disability ground is "that one is a person with a disability and the other is not or is a person with a different disability". He argued that the fact that one disability was acquired as a result of an assault while the other was an occupational injury meant they could be considered to be different disabilities. In this context, he was being treated less favourably than a person with a different disability.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent said that the Welfare Scheme was part of the employees' contract of employment. All employees were entitled to benefits payable under the scheme. The Assault Pay Scheme, by contrast, was not included in the contract of employment, and employees were eligible for benefits as opposed to being entitled. As an example, the respondent said the Assault Pay Scheme did not apply to situations where it was found that the assault was provoked by or contributed to by the employee. Blameworthiness was irrelevant to benefits under the Welfare Scheme.
3.2 The respondent submitted that benefits under the Assault Pay Scheme did not constitute remuneration for the purposes of the 1998 Act. It said that such benefits would not be normal or regular payments under an employee's contract and the majority of employees would never receive the payment.
3.3 The respondent noted the complainant's reference to section 6 of the Act. It pointed out that benefits under the Assault Pay Scheme were not dependent on the type of disability suffered following the assault. It acknowledged that the complainant had a back injury, which was a disability for the purposes of the Act, and said that an employee suffering an identical injury because of an assault would be eligible for consideration for the Assault Pay Scheme.
3.4 The respondent denied there had been discrimination in relation to the complainant's terms and conditions of employment. It said that his entitlements under the Welfare Scheme were a condition of his employment, but eligibility under the Assault Pay Scheme was not. This was a discretionary scheme, the terms and implementation of which had varied over the years, following discussions between the respondent and trade unions, and also following the intervention of the Labour Court.
3.5 The respondent said the complainant appeared to be arguing that there was "an agreement" which contained a provision in which differences in rates of remuneration were based on discriminatory grounds. As already outlined, the respondent disputed that benefits under the Assault Pay Scheme were remuneration. It also denied that the agreement was discriminatory as the entitlements under the Welfare Scheme and eligibility under the Assault Pay Scheme were not determined by reference to the type of disability suffered by the employee.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the ground of disability contrary to various provisions of the Employment Equality Acts 1998 - 2004. However, before considering these matters, it is necessary to deal with the complainant's argument on different disabilities.
4.3 Disability is defined in section 2 of the Act as
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
4.4 It will be seen that this definition covers past, present, future and imputed conditions. It is accepted by the respondent that the complainant has a disability as defined above.
4.5 In accordance with the Act, discrimination occurs where a person with a disability is treated less favourably than a person without a disability. The Act also provides discrimination occurs where a person with a disability is treated less favourably than a person with a different disability. However, there is no distinction made between disabilities based on the method of their acquisition.
4.6 It is clear from the terms of the respondent's Assault Pay Scheme that a person suffering exactly the same disability as the complainant, as a result of an assault, would be eligible for the benefits of the Scheme. A person with a different disability from his, acquired as a result of an occupational injury, would only be entitled to the benefits of the Welfare Scheme. I cannot agree that a back injury following assault is a different disability from a back injury following occupational injury. I am satisfied, therefore, that the respondent does not treat persons with one disability less favourably than persons with a different disability. In the circumstances, all of the complainant's allegations of discrimination under the various provisions of the Act must fail.
5.1 Based on the foregoing, I find that the respondent did not discriminate against the complainant contrary to the provisions of the Employment Equality Acts 1998 - 2004
20 October 2005