FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BUS EIREANN (REPRESENTED BY CIE GROUP OF COMPANIES SOLICITOR) - AND - MR. C DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Act, 1998
BACKGROUND:
2. A Labour Court hearing took place in accordance with Section 83 of the Equality Employment Act 1998 on the 26th February, 2008. The following is the Court's Determination.
DETERMINATION:
This is an appeal by the Company against the decision of an Equality Officer in a claim alleging discrimination on the disability ground brought by a worker.
For ease of reference the parties are referred to in this Determination using the designations prescribed at S77(4) of the Act. Hence, the Company is referred to as the "Respondent" and the worker is referred to as the "Complainant".
The Complainant, a bus driver employed by the Respondent, complained that he was discriminated against on the disability grounds when his employment effectively came to an end after he was declared medically unfit to carry out his driving duties, by the Respondent’s Chief Medical Officer. The Complainant’s claim is that the Respondent was in breach of terms of Section 6(2)(g) of the Employment Equality Acts, 1998 and 2004 (The Acts) and in contravention of Section 8 of the Acts.
The claim was investigated by an Equality Officer of the Equality Tribunal who found that the Respondent discriminated against the Complainant on the ground of disability and awarded the sum of €20,000 in compensation for the effects of discrimination. It is against that decision that the Respondent appealed to the Court.
Summary of the Complainant’ case
The Complainant read into the record the background details of his complaint as reported by the Equality Officer in her decision.
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.
He duly attended the Respondent’s Chief Medical Officer (CMO) in 1993 and 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 that time. The Complainant had another medical in 2002, which he passed and was told that he would not be called again for two years.
On 6th April 2004, the Complainant transferred from school bus driving to seasonal driving. On 28 June 06 he was required to attend the CMO for a medical examination. He had a hearing test and was asked by the CMO about the hearing loss note in the medical examination in 1993. The Complainant says he was not given any indication of there being a problem at the time.
The following day when he reported for duty as rostered, he was informed by the Area Manager that he had failed the medical and therefore, he was not permitted to drive a seasonal bus. As school services do not operate during the summer months he immediately became unemployed.
He subsequently received a letter from the Area Manager advising him that he had been deemed unfit for driving a school bus. The letter suggested that he seek medical advice to ascertain if any treatment was available to enable him to be deemed fit to drive.
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, however 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 was not assigned any further duties.
The Respondent’s case:
The Respondent denied the Complainant’s claim of discrimination. It acknowledges that the Complainant has a disability as defined by section 6 (2) (g) 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 were below the recommended 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.
The Respondent acknowledged that the Complainant was found fit to drive a school bus and a seasonal bus in May 2002. However, it stated that the auditory standards subsequently applied to the Complainant were not in existence at that time, being adopted for seasonal drivers 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.
The Respondent told the Court that in the opinion of the CMO, a hearing aid would not be beneficial in the Complainant’s case, as it would simply amplify 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 noises and thus cause major distortion to the Complainant’s acoustic ability.
The Respondent says that it wrote to the Complainant in August 2004 suggesting that he seek advice from his own medical advisor as to whether his condition was amenable to treatment. The Respondent says this was to establish that if it was possible to improve his overall hearing levels and if not then there was no point in his undergoing repetitive assessments in the occupational health unit. If the Complainant could have undergone treatment, which improved his hearing levels, then he would have been re-assessed by the CMO. However, this did not happen.
The Respondent noted that the Complainant’s consultant concluded that his hearing loss was “non-progressive” and would not impact on his work. The CMO disagreed 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.
Burden of Proof.
It is now trite law that in cases of discrimination the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged the probative burden of establishing that the principle of equal treatment was not infringed in relation to the Complainant shifts to the Respondent.
The Complainant carried the onus of proving the primary facts upon which he relies in advancing his claim of discrimination. If he succeeds in discharging that burden and the facts so proved are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the onus is then on the Respondent to prove, as a matter of probability, that its conduct was not motivated by considerations related to the Complainant’s disability or alternatively to successfully avail of defences under s16 (3).
Disability
Section 2 of the Acts defines disability as follows:
- "disability" means—
(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 judgment 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;
The Respondent accepts that the decision not to allow the Complainant resume his driving duties was directly influenced by his medical condition. This is sufficient to shift the probative burden to the Respondent. Accordingly the Respondent must prove, on the balance of probabilities, that the principle of equal treatment was not infringed in relation to the Complainant.
The Law
The Court must examine whether the Respondent did do all that was reasonable to accommodate/facilitate the Complainant’s retention in paid employment after 29th June, 2004 until his normal retirement date.
The duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 of the Act. It provides as follows:
16.—(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.
- (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.
Section 16 of the Act provides, in effect, that an employer is not obliged to retain a person in a position with a disability unless that person is fully capable of performing the duties of the position at issue. The Section goes on to provide that a person with a disability is to be presumed to be fully capable of discharging their duties if by the employer making some reasonable accommodation, they can continue in their employment.
The nature and extent of an employer’s duty to an employee with a disability was recently considered by this Court inDetermination EDA0413 – An Employer and A Worker,issued on 15th November, 2004. In relation to the effect of section 16, the Court stated as follows:
- “Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.”
“Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.”
“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull [2001] IRLR 60)”
It is for the Respondent to raise and make out a defence to a claim of discrimination on the disability ground in accordance with Section 16. The Respondent told the Court that it was not possible to allow the Complainant to continue in his driving duties having regard to the International Standards on driving public transport vehicles. The Court fully accepts the Respondent’s paramount need to comply with international safety standards. However, the Court is satisfied on the evidence before it that little serious consideration was given to what, if any, adjustment could be made so as to accommodate the Complainant. In that regard, the Court notes that little if any effort was made to enquire about alternative working arrangements for him. The Court was informed that the Respondent’s Equality Officer had a record of a telephone conversation with the then Area Manager, made on 30th September 2004 when she ascertained that there was no other work available for the Complainant.
The Court is satisfied on the evidence presented that no serious consideration was given to possible alternative positions for the Complainant, despite his long service, at any time during the period following his medical examination in June 2004, up until the time of his termination of employment on 7th October 2005. This failure to fulfill the duty imposed by Section 16 (3) negates the Respondent’s opportunity to rely on the defence to a claim of discrimination provided by Section 16 (1) (b).
For all of the reasons set out herein the Court is satisfied that the Complainant was discriminated against by the Respondent when he was “stood down” from driving duties. Accordingly the Respondent is not entitled to succeed in its appeal.
Determination
The Court finds that the Respondent did discriminate against the Complainant on grounds of his disability when he was “stood down” from his employment between 29th June, 2004, and 7th October, 2004. The Equality Officer awarded the Complainant compensation in the amount of €20,000 for the effects of the discrimination. Whilst the Determination of the Court is based on findings which are somewhat different to those reached by the Equality Officer, the Court is none the less satisfied that the conclusion of the Equality Officer is correct however, the Court has decided that the compensation should be increased to
€25,000.
Accordingly, the decision of the Equality Officer is affirmed with a variation on the amount of compensation awarded. The Respondent’s appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th May, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.