1.1 This dispute concerns a claim by a complainant that he was discriminated against by Bus Éireann on the ground of disability, contrary to the provisions of the Employment Equality Acts 1998 to 2007, when he failed a medical examination and was not permitted to drive.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 22 July 2004 under the Employment Equality Acts 1998 and 2004. Following an unsuccessful mediation process, and in accordance with her powers under section 75 of the Acts, the Director then delegated the case on 10 October 2005 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 Acts. Submissions were sought from the parties, and a hearing was held on 16 February 2007. Subsequent correspondence with the parties concluded on 16 May 2007.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant commenced employment with the respondent in 1978 as a part-time school bus driver. This work was carried out on a casual basis, without a contract of employment. In 1993 the complainant was offered summer seasonal driving in addition to his school bus driving, effectively working all year round. The complainant says it is the policy of the respondent that seasonal drivers undergo a medical examination.
2.2 He says that he duly attended the respondent's Chief Medical Officer (CMO) in 1993. He says he was told that his hearing test revealed that he had suffered "slight high tone hearing loss", possibly from his time in the Army. This was not an obstacle to his driving at the time. The complainant says he had another medical in 2002, which he passed with flying colours. He says he was told that he would not be called again for two years.
2.3 The complainant says that in 2004, he transferred from school bus driving to seasonal driving on 6 April. He says he was notified on 14 May that he was required to attend the CMO for a medical examination on 28 June. He says the "so called medical" took less than twelve minutes, six of which were taken up with assessing his hearing. He says the remainder of the time was spent by him being cross examined by the CMO about the hearing loss noted in the medical examination in 1993. The complainant says he was not given any indication of there being a problem at the time.
2.4 The complainant says he reported for duty the following day as rostered, and was told by an inspector that the Area Manager wanted to see him. The complainant says the Area Manager told him he had failed the medical and would not be permitted to drive a seasonal bus. He says he immediately became unemployed as the school services do not operate during the summer.
2.5 The complainant says that he subsequently received a letter from the Area Manager advising him that he had been deemed unfit also for driving a school bus. The letter suggested that he seek medical advice to see if any treatment was available to enable him to be deemed fit to drive.
2.6 In December 2004 the complainant's doctor wrote to the respondent's CMO enclosing a report from a consultant otolaryngologist (head/neck surgeon). The consultant said that in his opinion the hearing loss had been present for at least twenty years. He described it as non-progressive in nature, although he recommended that the complainant have his hearing checked every two to three years. The consultant concluded that the hearing loss did not affect the complainant in his work place or socially. In his covering letter, the complainant's doctor asked that the CMO exercise any discretion he may have to enable the complainant to return to work, particularly taking into account his long and exemplary work record. No further contact was received from the respondent, and the complainant did not work again.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies the complainant's claim of discrimination. It acknowledges that the complainant has a disability in terms of the Acts, and that he was found medically unfit for public service driving with the respondent. However it says that he was deemed unfit by virtue of the fact that his hearing levels are below the recommended minimum levels designated in the hearing standards used by the respondent's medical department. The respondent says these hearing standards are similar to those applicable in the United States, Canada and Australia.
3.2 The respondent acknowledges that the complainant was found fit to drive a school bus and a seasonal bus in May 2002. It says, however, that the auditory standards subsequently applied to the complainant were not then in existence, being adopted for seasonal driving in September 2003. The respondent says that the complainant was found fit for school bus driving in June 2004, but unfit for seasonal driving. The respondent says that it subsequently requested that the same standards be applied to all driving duties, and the complainant was therefore unfit for school bus driving also. The respondent says that the application of similar standards to school bus driving and seasonal driving was to ensure consistency, which was considered desirable from a medical perspective.
3.3 The respondent says that the medical opinion of the CMO is that a hearing aid would not be beneficial in the complainant's case. It says a hearing aid simply amplifies sounds in an effort to make them more audible. The respondent says this could have the opposite effect from that intended in that it could possibly amplify engine and cab noise and thus cause major distortion to the complainant's acoustic ability.
3.4 The respondent says that it wrote to the complainant in August 2004 suggesting that he seek advice from his own medical advisers as to whether his condition was amenable to treatment. The respondent says this was to establish that if it was not so possible to improve his overall hearing levels then there was no point in his undergoing repetitive assessments in the occupational health unit. If the complainant had undergone some treatment which did improve his hearing, he would have been re-assessed by the CMO. However, this did not happen.
3.5 The respondent notes that the consultant concluded that the complainant's hearing loss was non-progressive and that it would not impact on his work. The respondent says the CMO disagrees with both of these statements, pointing out that one would anticipate some decline in hearing levels normally associated with advancing age (the complainant was over 63 years of age at the time of the failed medical) and that public service vehicle bus driving is a hearing critical job requiring a high standard of hearing. Unless the complainant's hearing levels could be improved he would remain unfit for bus driving with the respondent.
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 both parties. For completeness, I wish to note that the complainant made several allegations of less favourable treatment with regard to pay, leave and other benefits. I am satisfied, however, that these matters related to his long-term part time status as opposed to his disability.
4.2 The complainant alleged that the respondent discriminated against him on the ground of disability contrary to the provisions of the Employment Equality Acts 1998 and 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability. Section 8 provides that
(1)In relation to-
...(b) conditions of employment...
an employer shall not discriminate against an employee or prospective employee...
4.3 Section 85A of the Employment Equality Acts 1998 to 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.4 The principal fact in this case is that the complainant was deemed by the respondent to be medically unfit to drive public service vehicles and therefore removed from the roster. Interestingly, neither party used the term "dismissal" in relation to the cessation of the complainant's employment, but I am satisfied that this is what occurred in this case. It is clear that the dismissal of the complainant arose solely from his failure, because of hearing impairment, to meet the auditory standards set by the respondent. It follows that his dismissal was prima facie discriminatory.
4.5 The Labour Court, in Humphries v Westwood Fitness Club ( ELR 297), pointed out that "...[A] dismissal which appears to be discriminatory within the meaning of s.8 of the Act may be saved by s.16....This section...can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed."
4.6 Section 16 states
(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) [Not relevant]
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
4.7 In this case, the respondent introduced hearing standards following research of the subject. The respondent submitted, and no evidence was adduced to dispute, that these standards are in accordance with international best practice. The respondent also submitted that use of a hearing aid would not assist the complainant in attaining the hearing standards, and it suggested to him that he consult his own medical advisers to ascertain if there was any treatment that would help him attain the standards. No evidence of any such treatment was adduced.
4.8 I note that the consultant was of the opinion that the complainant's hearing loss would not affect his work, and that the respondent's CMO disagreed with this conclusion. It should be pointed out that the complainant does not wear a hearing aid, and in his own words at the hearing he can "hear grass grow". However, it is the respondent's submission that the job of driving a public service vehicle is hearing critical, and I am satisfied that it is open to the respondent to set such hearing standards as it considers appropriate.
4.9 I asked the respondent to advise me of the procedures put in place to test drivers' hearing, following the introduction of the mandatory standards in 2003. I also asked for confirmation of the interval at which drivers are tested. In response, the respondent advised that there is no routine regular assessment of medical fitness among bus drivers. It said that such mass screening of individuals is no longer used in occupational medicine as it is deemed to be inefficient and insensitive in case finding and in identifying individuals with problems in relation to their medical fitness for driving.
4.10 The respondent said that drivers are medically assessed in the following circumstances: (i) prior to initial engagement. Should they be declared fit but an underlying condition identified, then they will be subject to ongoing review; (ii) when the nature of duties change, such as from school bus driving to regular scheduled driving; (iii) following a period of certified sickness absence; (iv) at the request of their general practitioner, where a condition has come to light; (v) at the request of management where there are concerns about ongoing fitness; (vi) at the request of the individual who is experiencing difficulties. The respondent says the complainant was subject to ongoing review because he was identified as having a hearing problem at his pre-employment medical for the position of school bus driver, and there was also a request for assessment of his ability to undertake routine scheduled driving.
4.11 I note the respondent's comments regarding mass screening of employees and I understand the difficulties involved. However, it is the respondent's contention that bus driving is a hearing critical job. If it is hearing critical, then the respondent must reassure itself that its drivers attain the standard set in accordance with best practice. In a situation where it cannot be aware of the state of hearing of significant numbers of its staff, because they have not come to attention in the circumstances described in 4.10 above, I cannot find that the application of the hearing standards is objectively justified. I am satisfied that the respondent cannot demonstrate that it formed a bona fide belief that the complainant was no longer capable of performing the duties for which he was employed. It follows that the respondent cannot therefore rely on the defence provided by section 16 of the Acts and its dismissal of the complainant was accordingly discrimination on the ground of disability.
5.1 Based on the foregoing, I find that the respondent discriminated against the complainant on the ground of disability, contrary to the provisions of the Employment Equality Acts 1998 to 2007.
5.2 I hereby order that the respondent pay the complainant the sum of €20,000 in compensation for the effects of the discrimination.
22 August 2007