(Represented by Matthew J. Nagle & Co., Solicitors)
Coiste An Asgard
(Represented by Gore & Grimes, Solicitors)
1.1 This dispute concerns a claim by Brian Connery that in September 2003 he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a) and 3(2) (g) and Section 4 of the Equal Status Act 2000. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2 Complainant's case
2.1 Circa January 2003 the complainant applied for and was accepted as a passenger/trainee aboard the sail training vessel Asgard II for a sea voyage that was to take place in September 2003. In early September 2003 the complainant was informed in writing by the respondent that he would not be accepted on board the Asgard II for the voyage in question due to the fact that he has Type 1 diabetes. The complainant had previously completed a number of voyages aboard Asgard II without incident.
2.2 The complainant had trained aboard Asgard II as a watch leader. He is also a member of the Cork North Civil Defence water search/recovery unit and has training in advanced first aid and has considerable experience in dealing with emergencies, both medical and rescue. His insulin dependent diabetes has never been an issue.
2.3 While he was notified by the respondent that he was being refused passage on Asgard II as a result of an earlier incident involving an insulin dependent diabetic the complainant does not accept that diabetes was the direct cause of the earlier incident and believes that the incident could have been avoided had the individual in question managed his condition properly at the time.
3 Respondent's Case
3.1 In August 2003 the Asgard II sail training ship took part in the Tall Ships race in the Baltic, under the command of Captain Colm Newport The trainee watch leader (named) aboard at that time was an insulin dependent diabetic. The latter, who was in extremely fit physical condition and an accomplished international sailor, managed his condition very well and had never before been seasick.
3.2 On 13 August 2003 the Asgard II headed to open sea. The following day winds were blowing at 35 knots and sea conditions were rough. By 16 August the wind was blowing at a consistent 35 knots with squalls reaching 70 knots with heavy overfalls and very rough seas. The trainee watch leader, an insulin dependent diabetic, became unwell and was unable to hold down food or water. He refrained from injecting himself with insulin as to do so without food or liquids in his system could render him comatose. His condition worsened. He began to lapse into unconsciousness and this became a matter of grave concern to the Captain. Two crew members were diverted from their duties to provide care and assistance to the ill crew member.
3.3 On 16 August the crew member's condition became critical and medical advice was sought via ship to ship telephone, from a doctor (named) who was on board another vessel in the area. Due to the doctor's concern for the crew member's condition the Captain requested "medivac" (medical evacuation) at 17.00 hrs on 16 August. A Polish search and rescue helicopter arrived a short time later (circa 18.30hrs) and the crew member was airlifted from the ship in dangerous conditions such that the winch man was injured in the course of the rescue. He was slammed against the rear of the vessel by the high winds and it is understood that his arm was broken as a result.
3.4 The captain immediately abandoned the race and headed for the nearest port to check on the condition of the crew member. A total of 27 of the Tall Ships had to retire from the race due to damage caused by the severe weather conditions. On locating the hospital where the crew member had been taken the Captain was informed that, had the crew member's condition continued unchecked, he would have died. Consequently the Captain contacted the Secretary of the Irish Sail Training Committee (Coiste an Asgard), Mr. Garry McDonagh and asked him to screen all applications for the upcoming offshore passage between Stavanger and Oban as he, the Captain, was not prepared to take Type 1 diabetics on a sea voyage for fear that a similar incident should arise. The complainant was identified as a Type 1 diabetes sufferer and, after consulting with Doctor Roy Browne, a director with Coiste an Asgard, Mr. McDonagh contacted the complainant by phone and in writing, to inform the complainant that, given his medical condition, it would be unsafe for him to travel on the upcoming sea voyage.
3.5 Mr. McDonagh arranged for a refund to the complainant of all expenses incurred by him and offered the complainant the option of travelling aboard the Asgard II on any trip of his choice, in 2003 or 2004, off Irish coastal waters where it was relatively safe for the complainant and aid could be sought swiftly in the event of an emergency. On circa 21 August 2003 the complainant telephoned Captain Newport who was aboard the Asgard II. The Captain explained to the complainant why he had made the decision not to take him on board for the open sea voyage. As the doctor who had provided medical advice to the Captain in the course of the earlier incident was also aboard at that time, the Captain asked her to speak to the complainant and explain, from a medical perspective, why she would not recommend that it was safe for the Captain to agree to take the complainant on an open sea voyage. The complainant disagreed with the doctor and stated so.
3.6 Medical evidence provided by Doctor Roy Browne at the Hearing of this complaint indicated that the crew member who became ill had, in fact, attempted to control his diabetes in the circumstances. As a result of the severe nausea brought on by the extreme weather conditions the person in question had not taken insulin injections because to do so when he was unable to hold down food or liquids could have caused him to become hypoglycaemic. This would have brought on a coma. As the weather conditions did not abate the nausea continued and in the absence of insulin injections the crew member experienced diabetic ketoacidosis, which in turn exacerbated the nausea being experienced by the crew member. Doctor Browne stated that in circumstances where this condition is not medically controlled within hours, it has a 100% mortality rate.
3.7 It would be unacceptable from the respondent's perspective, based on the earlier experience, (i) to risk the safety of the complainant, (ii) to risk the safety of the ship or other crew members who would have to be diverted from important duties in difficult sea conditions to tend to him should he become ill in circumstances similar to the earlier incident, or (iii) to risk the safety of air and sea rescue personnel who might have to effect a rescue in difficult circumstances, as was the case earlier. For these reasons it was deemed unsafe to allow the complainant to travel aboard the Asgard II on an open sea voyage.
3.8 The Captain of the Polish air/sea rescue helicopter which effected the rescue of the stricken crew member was presented with an award for bravery by the Irish State for that rescue in such difficult circumstances. Captain Newport of the Asgard II was presented with the Crowther Memorial Shield by Sail Training International, the official world sail training governing body, for "extreme acts of seamanship" for his handling of the Asgard II in the course of the rescue operation.
4 Conclusions of the Equality Officer
4.1 Section 4 (4) of the Equal Status Acts states that "where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination".
4.2 In the instant case it is clear from evidence presented that the crew member who became ill due to extreme conditions at sea was, at the time, in peak physical condition and was an internationally accomplished sailor who had never previously been sea sick and, in his own opinion, whose diabetes was very well controlled.
4.3 The complainant, in contrast, while having undertaken certain survival training on land with the Civil Defence, had limited experience of sailing and had not undertaken an open sea voyage aboard Asgard II previously. The complainant stated at the Hearing of this matter that he could not guarantee that he would never become seasick in similar conditions to those experienced by the crew member who became ill. The complainant remained adamant, however, that the crew member who had become ill had not properly managed his condition in the circumstances and had waited too long to inform Captain Newport of the extent of his illness.
4.4 The complainant is not medically qualified and was not present during the incident aboard the Asgard II when the crew member with the same medical condition as himself actually became ill. His comments are therefore opinion and conjecture based. The illness of the other crew member coincided with severe weather conditions and it is clear from the medical evidence provided by and on behalf of the respondent that, as long as the severe weather conditions remained, there was little hope of the crew member's condition stabilising.
4.5 I am satisfied, based on the totality of the evidence presented in this matter, that the complainant's medical condition is such that, in circumstances where a storm were to arise at sea in the course of an open sea voyage, it would make him vulnerable to experiencing the same nausea experienced by the crew member who fell ill during the August 2003 sea voyage. In those circumstances, the safety of the complainant, the ship, other crew members and air and sea rescue personnel could be compromised by efforts to tend to the complainant. As Coiste an Asgard and Captain Newport do not hold sway over the elements and cannot control weather conditions, the only reasonable way to ensure that this specific situation does not arise again is to ensure that persons with insulin dependent diabetes do not undertake open sea voyages.
4.6 The complainant produced no independent or expert medical evidence with regard to his condition in the course of the investigation or Hearing of this matter.
4.7 I note that, subsequent to the earlier incident, the complainant was not barred from ever sailing on the Asgard II and was, in fact offered a position on board the ship by the respondent for any voyage of his choice in Irish coastal waters, where, if a medical emergency were to arise, the Captain could promptly put in to port and/or seek prompt medical assistance.
4.8 In the circumstances, having considered all of the evidence in this specific matter, I am satisfied, on the balance of probabilities, that Section 4(4) of the Equal Status Acts applies.
Section 14(1)(a) of the Equal Status Acts 2000-2004 states
"Nothing in this Act shall be construed as prohibiting-
(a) the taking of any action that is required by or under-
(i) any enactment or order of a court,
(ii) any act done or measure adopted by the European Union,
by the European Communities or institutions thereof or by bodies competent
under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation
on the State,"
5.1 The respondent submitted a copy of Marine Notice No. 37 of 1984 (S.I. No. 193 of 1984) ( hereinafter "the Notice") to demonstrate that persons with Type 1 diabetes are prohibited from employment on open sea voyages in specified vessels. I note that Marine Notice No. 37 of 1984 places a permanent restriction on the service of insulin dependent diabetics. The Notice defines restricted service as meaning that the service of a seafarer is restricted to "certain shipping trades, geographical areas, types of ships or jobs.....". The notice is applicable to "sea-going Irish ships other than fishing vessels and pleasure craft" and prohibits "the employment in such ships of seafarers .......... who fail to obtain a valid medical fitness certificate" within twelve months of the notice coming into force. While the complainant was not an employee of Irish Sail Training at the time in question there is nothing in the Notice to say that sail training vessels are excluded from the scope of the Notice. It is therefore unclear as to whether the complainant would have been required to produce the medical fitness report referred to in the Notice. On this basis I have insufficient evidence before me to determine whether Section 14(1)(a) is applicable to the instant case and I can only view the Notice as persuasive in supporting the respondent's position that it was unsafe to allow the complainant to undertake an open sea voyage.
6.1 The decision by the respondent to exclude the complainant from open sea voyages because he is a Type 1 diabetes sufferer is covered by Section 4(4) of the Equal Status Act 2000-2004 and does not therefore constitute discrimination on the grounds of disability.
12 May, 2006