THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by David O’Regan B.L. instructed by Herbert & Co. Solicitors)
A Metal Processing Company
(represented by Emmet O’Brien B.L. instructed by Holmes, O’Malley, Sexton Solicitors)
File reference: EE/2010/909
Date of issue: 23rd December 2013
Keywords: Employment Equality Acts, Disability, Diabetes, Reasonable accommodation, Disproportionate burden, Section 16 defence
1.1 The case concerns a claim by Mr B against a metal processing company. His claim is that he was discriminated regarding his conditions of employment on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’]. He also claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them. The complaint of victimisation was withdrawn at the hearing.
1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 17th December 2010. On 18th September 2013 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Submissions were received from both parties and a joint hearing was held on 30th September 2013 as required by Section 79(1) of the Acts. The last piece of information requested by me was received on 3rd October 2013.
Summary of the complainant’s case
2.1 The complainant submits that he commenced employment with the respondent in May 1998. He state that he was employed initially maintaining and fixing machinery. Approximately a year later he obtained his lorry driving licence and started work as a Heavy Goods Vehicle (HGV) driver.
2.2 In May 2005 Mr B was diagnosed as Type 1 Diabetic. He immediately informed the respondent. The complainant did not suffer any diabetic episodes until November 2009. On 24th August 2010 the respondent’s Occupational Physician said that as a result of the complainant’s diabetes that he was unfit to continue to work as a commercial driver, unfit to work double shifts and should not work for prolonged periods. However he was allowed drive a fork-lift or similar and fit to work a moderate amount of overtime. Therefore, he was moved to work in the respondent’s yard. Mr B could not work alone in the scrapyard and he was to have his glucose sweets with him at all times. He was not to leave the site without clocking out.
2.3 Mr B worked in the yard in conjunction with a welder for approximately a year until the welder was made redundant. Then Mr B was given a choice of going on sick leave or taking redundancy. He chose to go on sick leave. The complainant submits he was replaced by a new recruit. He was eventually made redundant in 2013. His rate of pay was €12.89 per hour.
Summary of the respondent’s case
3.1 The respondent stated that Mr B only commenced employment with them in 2001. Following a hypoglycaemic episode in 2009 (in consultation with their medical advisors) Mr B was removed from driving duties and placed on a supernumerary basis at one of their scrapyards. The respondent submits this was a temporary measure to facilitate Mr B while he awaited medical clearance to resume his normal driving role. The respondent maintains that at all times Mr B was aware this role was temporary. One of the conditions was that he could never work alone i.e. they employed a buddy system where he worked beside Mr Z (a welder) in case he had an other hypoglycaemic episode.
3.2 The respondent points out that the metal recycling business is heavily dependent on receiving material from manufacturing plants, the construction sector as well as end-of-life vehicles. Volumes of material from all sectors have declined and the company has been forced to restructure to remain viable. In October 2010 following a review of operations several employees throughout the business were made redundant. Therefore, the company no longer had the capacity to accommodate Mr B on a supernumerary basis. This was explained to Mr B at a meeting in November 2010 and he was informed that although he had not been selected for redundancy he could avail of this on a voluntary basis he wished. An enhanced package was offered. As he remained unfit to work as a driver, he also had the choice of going on sick leave. The respondent continued to pay the employee as well as the employer contribution towards his health insurance. In May 2011 he was offered further work in the scrapyard due to seasonal capacity.
3.3 The respondent denies that Mr B’s position was filled by a new hire. A vacancy for a qualified fitter was advertised and a qualified fitter was recruited. Mr B was not eligible as he did not have the required qualifications. Mr Z (his ‘buddy’) was laid off and has never been replaced.
3.4 The respondent readily acknowledges that Mr B informed them that he had developed diabetes in 2005. Having received medical opinion that this would not impact on Mr B’s ability to perform his role, the company were content to allow him to continue to drive for them. It was only following his hypoglycaemic episode in 2009 that Mr B was temporarily removed from driving duties. At that time the company expected that he would be allowed to drive commercial vehicles again within 12 -15 months. It was not until August 2010 that it was confirmed by the respondent’s occupational physician (in consultation with his own endocrinologist) that ‘he was unfit to continue commercial driving for the foreseeable future. It is unlikely that this situation will change’.
3.5 In March 2010 Mr B admitted that he undertook driving duties against permission. The Director who asked him to drive did not know that Mr B was not supposed to be driving and Mr B did not correct him. Even after that he was being found off-site during working hours – part of the conditions of his position was that he was to clock out if he left the yard. Because the company had sympathy for his situation, they did not formally discipline him. He was eventually made redundant in 2013 along with almost everybody else.
3.6 They submit that he did provide him with reasonable accommodation by offering a job in the scrapyard (on the driver rate of pay) and operating the buddy system. He was allowed to supply his own medical reports and was consulted at all times. Indeed the Occupational Physician rang his treating Consultant to discuss his case. His consultant endocrinologist said on 7th July 2011:
Overall I think it would be safer if he were not to drive a commercial waste collection truck or equivalent vehicle on a public road. Similarly I would also be against him operating a crane. I think may be feasible for him to drive a fork-lift but that would be the limit of what I would recommend on his behalf.
3.7 The respondent cited A Health and Fitness Club and A Worker, and Department of Justice, Equality and Law Reform and William Kavanagh.
Conclusions of the Equality Officer
4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the complainant was discriminated regarding his conditions of employment and whether the respondent failed to provide reasonable accommodation in order to enable him to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
4.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act. 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 An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Regarding this Section 16 (1) of the Acts states:
Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(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.
However, Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) For the purposes of this Act a person who has a disability
is fully competent to undertake, and fully capable of
undertaking, any duties if the person would be so fully
competent and capable on reasonable accommodation
(in this subsection referred to as ‘‘appropriate
measures’’) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s
(iii) the possibility of obtaining public funding or other
4.4 The respondent cited the case of A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:
This Section, on which the respondent relies, 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 complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions. [my emphasis]
4.5 I accept that Type 1 diabetes mellitus is a disability within the meaning of the Acts. From his diagnosis in 2005 until 2009 Mr B was able to manage his condition well and the respondent, having conducted the necessary medical enquiries, was content to allow him to drive Heavy Goods Vehicles on their behalf. Regarding insulin-dependent diabetes and commercial licences, Ireland usually follows the UK Driver and Licensing Agency (DVLA) standards and tends to disallow a person to drive buses or lorries if s(he) has had a severe hypoglycemic episode within the previous twelve months. As a result of Mr B losing consciousness at work in 2009, the respondent’s Occupational Physician subsequently met with him and recommended that he could not drive a HGV on a temporary basis. Unfortunately, Mr B had a number of hypoglycemic episodes in the following months and in consultation with his own Consultant Endocrinologist it was eventually recommended in 2010 that he not drive commercial vehicles in the foreseeable future. The medical enquiry was an iterative process and appears to have been done with compassion for Mr B’s situation. He and his treating consultant were encouraged to feed into the process. Therefore I accept the respondent’s contention that the complainant was not fully competent and fully capable of doing the role that he was hired for – that of a HGV driver.
4.6 Now I will turn to whether the respondent provided appropriate measures or not. As the Labour Court has found in An Employer and A Worker the reasonable accommodation test is an objective one:
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. [my emphasis]
4.7 Many employers may have been tempted to terminate Mr B’s employment as soon as it became apparent that he could not work as a driver. However the respondent came up with an imaginative solution of employing a buddy system. Mr B retained his rate of pay as a Driver even though he was now working as General Operative. His transgressions under the new arrangement were forgiven i.e. when he drove a HGV without permission as well as leaving the site without clocking out. This accommodation continued for a year until the respondent made his ‘buddy’ redundant. This was at a time when the workforce was reduced from 123 employees to 35. In the circumstances of this case, I am satisfied that the costs of reasonable accommodation (i.e. retaining a buddy for which there was no other work for) did impose a disproportionate burden on the respondent.
4.8 To reiterate, when the respondent realised that Mr B was no longer fully competent and fully capable of remaining as a commercial driver, they were pro-active in exploring appropriate measures to accommodate Mr B’s retention in their employ. Reasonable accommodation was provided until it placed a disproportionate financial burden on the respondent. Therefore, it can avail fully of the defence in Section 16. It is not without sympathy for Mr B that I make this finding as I am aware that obtaining a Category C driving licence requires great skill and effort. It is unfortunate that because of complications arising from Mr B’s diabetes he is no longer able to continue in the role for which he worked hard to obtain. However, the respondent was exemplary in how it conducted its enquiry as to whether Mr B was fit to remain as a HGV driver and in their attempts to accommodate him. Therefore, I must find against the complainant.
I have concluded my investigation of Mr B’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has not discriminated against the complainant on the grounds of disability regarding his conditions of employment
(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to continue to be employed by them
Therefore, I find against the complainant.