THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 043
Mr Tom Grimes (represented by Ms Mary Paula Guinness B.L., instructed by O'Mara Geraghty McCourt Solicitors)
Iarnrod Eireann (represented by Ms Cathy McGuire B.L., instructed by the respondent's in-house legal service)
File References: EE/2009/251
Date of Issue: 19th April 2012
Table of Contents
Summary of the Complainant's Written Submission ............3
Summary of the Respondent's Written Submission...............5
Conclusions of the Equality Officer .....................................6
1.1. The case concerns a claim by Mr Tom Grimes that Iarnrod Eireann discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment, failure to provide reasonable accommodation, and other discriminatory conduct.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 20 April 2009. A submission was received from the complainant on 6 January 2010. A submission was received from the respondent on 8 February 2010. On 19 October 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 February 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant works for the respondent as a train driver. He submits that the respondent failed to provide him with reasonable accommodation following a disabling accident at work. The complainant feels further discriminated by certain remarks and by a requirement to sign on for work at a particular train station, something he alleges was not required of other drivers. He also alleges that failure to activate the disabled driver's scheme when he was out of work for more than 26 weeks amount to discrimination on the ground of his disability.
2.2. The complainant's submission refers to a complex series of events, both medical, and in terms of his communications with the respondent. For greater clarity, these are set out as a timeline in the table below:
17/9/2007 Complainant suffers accident at work and sustains a knee injury. His GP prescribes medication and physiotherapy.
19/10/2007 The complainant's injury does not improve and his GP refers him to an orthopaedic surgeon.
6/11/2007 Complainant attends orthopaedic surgeon
9/11/2007 Complainant undergoes MRI scan
22/11/2007 & 29/11/2007 Physiotherapy sessions
4/12/2007 Complainant attends orthopaedic surgeon and discusses use of the "dead man's pedal", which it is felt aggravates his knee problems.
17/12/2007 Complainant undergoes further medical procedures.
8/1/2008 Complainant attends orthopaedic surgeon. Surgeon recommends changes in lifestyle, including change in type of trains which the complainant drives.
8/3/2008 Complainant attends the respondent's medical adviser, Dr L.
20/3/2008 Second visit to Dr. L. Complainant is certified fit to return to work.
End March 2008 Complainant returns to work, but is certified unfit for work after two days by his GP.
8/5/2008 & 29/5/2008 Complainant attends Dr. L. "Dead man's pedal" discussed.
9/6/2008 Complainant returns to work. He suffers from pain and discomfort.
3/7/2008 Letter from complainant's GP, recommending a change of duties due to problems with the use of the "dead man's pedal".
20/8/2008 Complainant attends Dr. L. Change of duties to DART discussed. Problems with "dead man's pedal" and DART train technology discussed in detail.
26/11/2008 Dr. L passes complainant fit to drive all units.
8/12/2008 Complainant's solicitors write to respondent, requesting transfer to DART as reasonable accommodation.
9/12/2008 Written transfer request by complainant directed to his manager.
13/1/2009 Follow up letter by complainant to supervisor.
15/1/2009 Response from supervisor confirming transfer request
2/2/2009 Complainant certified as unfit to work by his GP
11/2/2009 Follow-up letter from solicitors to supervisor re: transfer
19/2/2009 2nd follow-up letter from solicitors to supervisor.
11/3/2009 3rd follow-up letter from solicitors to supervisor
20/4/2009 Complaint lodged with Equality Tribunal
14/8/2009 Meeting between complainant, complainant's union representative and respondent head of HR - employer agreed to request a move to DART.
17/8/2009 Complainant attends GP over concerns of fitness to return to work.
18/8/2009 Complainant attends Dr. L, who finds him unfit to return to work.
3/9/2009 Complainant attends respondent's CMO.
11/9/2009 2nd meeting between head of HR, assistant head of HR, complainant and union representative. Agreement that complainant would transfer to DART and be trained accordingly.
21/9/2009 Dr L. passes complainant as fit to work on limited duties until he can start his DART training. The complainant returns to work.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant's first formal request to drive DART trains was only received in December 2008. The respondent further notes that due to chronic pain, the complainant would not have been a position to start training as a DART driver before September 2009.
3.2. The respondent further disputes that the complainant was discriminated against when it was requested of him, while he was training as a DART driver, to sign on at Connolly Station. It points out that in the case of one named driver, the respondent was satisfied that the driver was adequately supervised in his signing-on, and that the signing-on of the other named driver was indeed irregular and stopped five days later, when it had come to the attention of management.
3.3. With regard to entering the complainant into the disabled driver's scheme, the respondent states that due to confusion about the complainant's medical condition and likely return to work. It states that when this was clarified, the respondent took the necessary steps immediately and the complainant received a significant sum of money from the respondent to ease any financial burden.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was refused reasonable accommodation for his disability within the meaning of the Acts and whether he was otherwise discriminated against on the ground of the same disability.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. Since there is no dispute that the accommodation sought pursuant to S. 16 of the Acts - the transfer to DART driving duties - was eventually provided, the remaining net issue remains whether the respondent was pro-active enough in working with the complainant in implementing it.
4.4. This follows the Labour Court decision in A Government Department v. A Worker [ADE0516], in which the Court reviewed the changes in the law relating to disability brought about by the Equality Act 2004, and held that
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability. [...]
The scope of an employer's duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. [emphasis added]
4.5. With regard to the events that eventually led to the complainant's accommodation to drive DART trains, a complex picture emerged from the evidence given during the hearing.
4.6. The complainant is in his early thirties, 6ft 2" tall, muscular and athletic. He used to play rugby and still coaches others in the sport. He either stated in evidence, or accepted in cross-examination, that he flew to Kenya for a charity project while on paid sick leave from the respondent, that he continued to do running workouts while out sick, and that he suffered a roller-skating accident in July 2009, after having been certified permanently unfit for normal duties in his work with the respondent on 12 June 2009.
4.7. The complainant's sporting activities align with the diagnosis of his knee problems which was provided by the respondent's occupational health physician, Dr. L., who gave extensive evidence during the hearing.
4.8. Dr L. stated that the complainant essentially suffered a thinning of the cartilage on the back of the knee which cushions the knee-cap. This kind of wear and tear is common for many sportspeople such as the complainant. It means that the knee can move sideways and cause pain. The remedy against this is a strengthening of the vastus medialis and tigh muscles. Many people with this condition also elect to take medication against the pain, either on prescription medication or over-the-counter products, something the complainant refuses to consider. The complainant confirmed this. Dr L. stressed in his evidence that the complainant cannot be forced to take medication against his symptoms if he does not want to. According to Dr. L, the complainant did not suffer any damage to his cartilage either after his workplace accident, where he came down straight on the knee joint, or after his roller-skating accident, and that this was confirmed by MRI scans.
4.9. There was no dispute that Dr. L. engaged extensively with the complainant in order to find ways to get the complainant back to work. This engagement lasted from March 2008 to August 2009 and included liaison with the complainant's doctors, measuring both the complainant and the diesel engines the complainant used to drive from an ergonomic perspective and suggesting possible work solutions to the complainant.
4.10. The complainant's problem in driving diesel engines results from the "Dead Man's Pedal" or DMP. The complainant explained that the DMP is a heavy lever on the left hand side of the engine which needs to be pressed down constantly, and released every 90 to 120 seconds, or else the engine stops. This is a security mechanism to ensure the driver is alert and capable of driving the engine. The complainant explained that operating the DMP with the leg with his injured knee caused him considerable pain. In addition, he also found it difficult to walk on ballast and to get in and out of the diesel engines from the ground. This problem later re-occurred when it came to boarding DART trains, and in connection with the fact that the DART driver cabin proved very uncomfortable for someone of the complainant's height, meant that the complainant never actually took up duty as a DART driver with the respondent, despite completing the relevant training and despite the fact that this was the reasonable accommodation he had sought. He remained on sick leave at the time of the hearing of the complaint.
4.11. There was also no dispute that Dr. L. suggested a transfer to the DART to the complainant from early on. However, the complainant, in his own evidence, was reluctant to transfer to the DART because in terms of the satisfaction he derived from his work. He said that he loved to drive diesel engines on long intercity routes. Accordingly, a lot of time was spent by the complainant and Dr L. with discussions on how the complainant could be facilitated to continue to drive diesel engines. Eventually, Dr L. certified the complainant fit for all duties in November 2008, in line with his diagnosis outlined in paragraph 4.8 above and the complainant took up duty again as a diesel engine driver. In February 2009, the complainant was again certified as unfit for work by his GP. As noted above in paragraph 4.6, he was certified permanently unfit for normal duties on 12 June 2009.
4.12. There was some dispute between the parties as to when the complainant first made his request for reasonable accommodation, in requesting a transfer to DART duties. The complainant stated that he first made a verbal request to his District Manager, Mr A., in July 2008. Mr A. however had no recollection of any such request and stated in his evidence that he would ask anyone who would make a request of this nature to him, to put it in writing. He further stated that he was aware of the respondent's obligations towards staff, both under employment legislation and the respondent's duty of care in tort law, and that he would take guidance from the respondent's medical department with regard to any requests for reasonable accommodation on the ground of disability.
4.13. While a handwritten note from the complainant's GP, in which a transfer to DART duties on account of the complainant's knee injury is suggested, does exist, I prefer Mr. A.'s evidence on this point. This is also supported by the fact that even in August 2008, discussions between the complainant and Dr. L. were still ongoing, due to the complainant's love and dedication to driving diesel engines. Dr L. passed the complainant fit to drive all units on 26 November 2008, and in cross-examination, the complainant stated that it was on this date that he "gave up the hope of being a loco driver" for the first time. Under the circumstances, I will take a letter dated 8 December 2008, and sent by the complainant's solicitors to the respondent's Head of HR, as the complainant's first request for reasonable accommodation. This was followed a day later by a letter from the complainant to Mr A. reiterating this request, and expressing disappointment that no transfer had been forthcoming. I find it also noteworthy that the complainant, in his letter to Mr A., says that: "It is with huge regret that I am requesting a transfer to the DART as soon as is possible as I see this as my only option now".
4.14. Mr A. responded to the complainant on 15 January 2009, and advised that he had forwarded the complainant's request to the DART Suburban District Office and also to Mr. T., Operations Manager, DART. Mr A. then relayed Mr T.s response as follows: "Mr T., Operating Manager Dart has since wrote back to me saying that when he advertises for EMU drivers if you hare interested you will have to apply the same as all other employees and selection will be based upon the results of the interview and tests."
4.15. For the respondent, Mr P., Industrial Relations Manager and Assistant Head of HR, explained in evidence that the DART and suburban rail service is in fact a separate business unit within the respondent organisation from the intercity and outer suburban service. Staff received money payments when the two businesses were separated organisationally, and no formal transfer procedure now exists between them. Informal duty swaps between personnel on both sides are facilitated if both staff members request it. This would have been an avenue for the complainant had the DART driver involved not changed his mind.
4.16. A further complication arose in that the complainant was on sick leave again, from 2 February 2009 to 21 September 2009. I find it important to note that the complainant's renewed sick leave started some two weeks after Mr. A.s response to his transfer request. It is part of the respondent's case that it made no sense to put reasonable accommodation in place for the complainant until he had returned from this period of sick leave and until clarity had been achieved as to his medical status. In the meantime, the complainant's solicitors kept writing to Mr. A. re-iterating the transfer requests, and in April 2009, the complainant's case was filed with the Equality Tribunal. Mr. A., in evidence, said that he passed these letters on to the respondent's legal department. From the respondent's evidence on what happened then, it seems that these letters "got stuck" in the legal department to some degree, or at any rate, that communications between the legal and human resource departments were not working optimally. However, I find that this is a moot point as the complainant was not medically fit at the material time to report for work with the respondent anyway, whether reasonable accommodation was provided for him or not.
4.17. In August 2009, the complainant's transfer to DART was agreed at a meeting between the complainant, the complainant's union representative and HR, and this was reiterated at a second meeting on 11 September 2009. On 21 September 2009, Dr. L. passed the complainant as fit to work on limited duties, and the complainant returned to work, in this case, commencing his training as a DART driver.
4.18. From all of the evidence outlined above, I am satisfied that the respondent properly fulfilled its obligations towards the complainant under S. 16 of the Acts, in terms of providing the complainant with reasonable accommodation. Dr. L. engaged in a lengthy and detailed process to ascertain the extent of the complainant's disability and what accommodations would be suitable for him. I am satisfied that he fulfilled, on behalf of the respondent, the respondent's duty to seek complete information about the complainant's disability once it came to the respondent's attention.
4.19. Furthermore, soon after reasonable accommodation was first seriously sought by the complainant, the complainant fell sick again and was certified unfit for work for several months. While he was still so certified, his request was progressed, and the accommodation he sought was provided immediately upon his return to work. Accordingly, I am satisfied that the respondent did not fail to provide the complainant with reasonable accommodation pursuant to S. 16 of the Acts, and that this part of the complainant's case must therefore fail.
4.20. With regard to the the insurance scheme for disabled drivers, the respondent accepted that delays had occurred in activating it. The complainant stated in evidence that this caused him considerable hardship, including rendering him homeless for a period of time. Witnesses for the respondent expressed shock and regret upon hearing this, and stated strongly that they had been unaware of these problems until the complainant stated them in evidence at the hearing. The respondent, however, strenuously denied that the delay occurred for any discriminatory reasons and stated that confusion as to when the complainant might be able to return to work, and a number of administrative errors, were to blame for the delay. This situation was rectified, however, and the complainant accepted that he eventually received his payment, including any back payments that were due to him, and that he furthermore received a €3000 discretionary payment from the Stationmaster's Fund. This was to assist the complainant with the cost of his knee surgery. Furthermore, the complainant confirmed that he received a €1500 loan from the respondent, which he was allowed to pay back in instalments of €50 per week through deductions from his wages. Witnesses for the respondent maintained that whenever the respondent learned of financial troubles the complainant found himself in as a result of his illness, insofar as they knew about it, the respondent would come to the complainant's assistance.
4.21. From the respondent's evidence on this point, which the complainant has either confirmed or at least not challenged, I am satisfied that the difficulties which arose with the disabled drivers insurance scheme payout do not amount to discriminatory treatment of the complainant on the ground of his disability, and that this part of his complaint must therefore fail.
4.22. With regard to the complainant's complaint that he was discriminated against by having to sign on for work in Connolly Station, where he received his training, instead of in Bray or Arklow, close to where he lived, I accept the respondent's evidence that it is normal policy to require staff to sign on at their workplaces within the company instead of close to home, especially during a period in which they receive training. I further accept that for one named individual, signing on close to home was an irregularity that was ended soon, and that special circumstances pertained to the other staff member. As the Labour Court has recently stated in the decision Europa Plus Ltd. v. Nijole Kvostiene [EDA121], to establish a prima facie case of discrimination, it is not sufficient to establish that one was treated less favourably than another person in comparable circumstances is, was, or would be treated. A complainant must also adduce some evidence "that a reason for the less favourable treatment - not necessarily the only reason but one that is significant in the sense of more than trivial - must be the protected characteristic relied upon, such as the Complainant's race, disability, gender, etc." In the case on hand, I am satisfied from the respondent's explanations that the signing-on requirement, particularly for training or re-training staff, was simply company policy and not imposed on the complainant because of his disability. Accordingly, this part of the complainant's complaint must also fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Iarnrod Eireann did not discriminate against Mr. Tom Grimes because of his disability, pursuant to S. 6(2)(g) of the Acts, in terms of conditions of employment, failure to provide reasonable accommodation, or any other discriminatory conduct.
19 April 2012