Complainant

Respondent

Parties

Eamon O'Doherty

Gleeson Concrete  

Representatives

Tom O’Donnell, BL

Loughlin Deegan, Byrne Wallace Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065107-001

31/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065107-002

Withdrawn

31/07/2024

Introduction

The respondent is a supplier of construction materials including concrete blocks, Ready-mix, sand and gravel.  It is a family-run business that employs around 25 people in County Tipperary.  Most of the employees are drivers or yard-based general operatives.  Four people work in an office. 

To investigate this complaint, it was necessary for me to understand the categories of driving licences issued by the Road Safety Authority (RSA).  I understand that there are 15 categories of licences and that they are divided into two groups:

Group 1:  Includes cars, motorcycles, certain vans, small buses and tractors;

Group 2:  Includes coach buses, trucks and articulated vehicles.

The complainant commenced working for the company in October 2005, when he was 19.  For the first year or so, he worked in the yard driving forklifts, loaders and shovels.  From the age of 21, he was eligible for a Group 2 driving licence, which permitted him to drive heavy trucks on the public road.  When his employment ended on February 6th 2024, his hourly rate of pay was €15.40, equivalent to €616 per week. 

In June 2017, the complainant had a serious accident when he tripped carrying a bucket of hydrochloric acid which he intended to use to clean concrete off a truck.  The acid splashed into his eyes resulting in him being visually impaired to the extent that he couldn’t return to work.  He spent the next five and a half years being treated for his sight loss and eventually, he recovered the sight in his right eye. 

To renew a driving licence, a person who experiences total loss of sight in one eye is required to complete a National Driving Licence Service (NDLS) medical report form.  This form must also be completed by the applicant’s doctor or optometrist.  Paragraph D of the guidelines for completing the eyesight report form provides the following guidance:

“A person who has total functional loss of vision in one eye or who uses only one eye must have a visual acuity of at least 0.5 (6/12), with corrective lenses if necessary.”

In November 2022, almost five and a half years after his accident, the complainant was issued with a Group 1 driving licence for 10 years.  He was also issued with a front-end loader ticket by Solas. 

Both the complainant’s and the respondent’s submissions contain a reference to an eye test known as a Monocular Esterman visual field test.  This is a test that examines the outer edges of a person’s peripheral vision and its purpose is to identify irregularities in the visual field to determine suitability for driving.  A report from the complainant’s optician, Ms Grace Durkan, dated May 18th 2023, indicates that the complainant had an Esterman test in April that year.  In her report, Ms Durkan stated that the complainant’s “visual acuity is 6/8 binocular.”

On May 30th 2023, as part of the assessment for his return to work, a consultant ophthalmologist, Dr Martin Treacy reported that the complainant’s eyesight was such that he was not capable of driving Group 2 vehicles.  The Esterman test carried out by Dr Treacy was “unreliable due to a high number of false positive errors and a high number of fixation losses.”  Dr Treacy reported that the complainant would have to have a normal Esterman test before he could be passed for Group 1 driving.  In October 2023, when he was asked by the respondent’s occupational consultant to take a repeat Esterman test, the complainant declined to do so.

However, after his employment was terminated, in June 2024, Mr Cian Gildea, a consultant ophthalmologist in the Royal Victoria Eye and Ear Hospital in Dublin stated that the complainant had taken an Esterman test and his opinion was that he fulfilled the NDLS’s medical criteria for fitness to drive.  In August 2024, the complainant was certified by Bus Éireann as eligible to drive a school bus with capacity for up to eight passengers.  This type of bus is classified as a Group 1 vehicle.

Absence from Work following the Accident in June 2017

Due to the impairment of his eyesight, the complainant was no longer eligible for a Group 2 driving licence and, in 2021, when the sight in his right eye had improved to a degree, he decided to try out a job in the office of the business.  His return was supported by Ms Liza Gleeson, a director who attended the hearing on December 4th 2024.  In her evidence, Mrs Gleeson said that, to enable the complainant to take up the office-based role, she got advice from the National Council for the Blind (now Vision Ireland) about how to accommodate a person with sight loss in the workplace.  She said that the company purchased a large computer monitor, a keyboard with extra-large keys and a magnifying board.  Unfortunately, the complainant found that his eyesight wasn’t sufficiently recovered to enable him to do the job and, after two weeks, he went absent again.

A personal injury claim against the respondent was settled in February 2022 before it was due to be heard in the High Court.  Responsibility for the accident was attributed on a two thirds / one third basis to the respondent and the complainant respectively.  During the litigation process, professional reports were submitted on behalf of the complainant regarding his future work prospects.  The reports indicated that his injuries were such that he would be unable to work again, or that he would not be able to work as a truck driver but that he may be able to do a less skilled role.  A significant sum was awarded to him in compensation, based on a conclusion that he would never be able to return to work as a truck driver, and that he might not return to work at all.

Efforts to Return to Work

In November 2022, Mr Gleeson had a conversation with the complainant and informed him that his sick pay would cease in December.  The complainant’s social welfare illness benefit had been topped up by the company since the accident in June 2017.  The complainant indicated that he would like to come back to work.  On February 15th 2023, he wrote to Mr Gleeson and asked him when he could come back.  Mr Gleeson arranged for him to be assessed by an occupational health consultant and, on March 23rd 2023, Dr John McDermott of the Healthwell Clinic wrote that the complainant’s eyesight was adequate for Group 1 vehicles but not adequate for Group 2.  Dr McDermott wrote that,

“…in terms of alternative work, Eamonn could perhaps undertake a sales role and/or office-based duties (although he wouldn’t be particularly keen on this).”

On May 12th 2023, Dr McDermott wrote to the complainant to ask him to attend for a consultation with Dr Martin Treacy, who has an expertise in work-related vision assessments.  On May 30th 2023, Dr Treacy provided a report to Dr McDermott in which he stated that the complainant’s vision was not adequate for a Group 2 Licence and that his tests were inconclusive for a Group 1 Licence.  On June 23rd 2023, Dr McDermott wrote to Mr Gleeson.  Having regard to his own report of March 23rd 2023, and the opinions of Ms Durkan and Dr Treacy, Dr McDermott provided the following conclusion:

“I am satisfied that Eamonn (sic) remains medically unfit to resume his previous role as a Truck Driver and I believe that this (ineligibility) is permanent. Furthermore, Eamonn would not be fit to manage hazardous work machinery and he would require further assessment if/for driving standard (Group 1) company vehicles etc.  Therefore, I believe Eamonn will most likely require a role that is mainly office-based.”

Dr McDermott sent a copy of this letter to the complainant. 

On July 17th 2023, Mr Gleeson wrote to the complainant and, referring to Dr McDermott’s letter of June 23rd, he invited the complainant to a meeting to discuss “what options, if any, may exist within the business for you, taking into account the medical report received.”  Mr Gleeson put the complainant on notice that his employment may be terminated if a suitable alternative role wasn’t identified or “unless significant contrary medical evidence can be provided to justify a change in the medical outcome received.”

The complainant replied to Mr Gleeson’s letter on July 21st 2023 and suggested three alternative jobs to that of a truck driver:

§  Office-based duties;

§  Ready-mix plant operator;

§  A sales job using his own transport.

On August 11th, the complainant attended a meeting with Mr Gleeson at which he was accompanied by a work colleague.  In his submission in preparation for the hearing of this complaint, Mr Deegan provided a summary of the outcome of that meeting:

1.      The complainant said that he was unhappy with the medical reports procured by Mr Gleeson, and that he was being treated by surgeons in London and opticians in Tipperary who indicated that his eyes were in good condition. 

2.      The meeting recorded that the complainant had not provided any medical report of his own to the company.

3.      The complainant did not contradict the fact that he was not licensed to drive Group 2 heavy vehicles.

4.      He said that he was open to a full-time or a part-time job, and that he would be agreeable to a role as a salesman.

5.      He said that he would be open to a job in the Ready-mix batching plant and that he would know how to do that job.

6.      He said that he would consider a job in which he would oversee the paperwork related to transport and truck maintenance.

Mr Gleeson wrote to the complainant on August 24th 2023.  In his letter, he referred to the meeting on August 11th and wrote:

“Having reflected on the contents of the submissions made by you during the meeting, I am inviting you to provide any relevant occupational medical information you may have, including any contrary medical opinion, you wish to be considered in coming to a final decision on your employment and possible suitable alternative roles to Dr McDermott no later than 8th September 2023.  Alternatively, your treating physicians may provide this information directly to Dr McDermott for his consideration within the timeline proposed. Should you require an extension of the timeline, please do not hesitate to let me know and we can consider this request.

In addition, I am making enquiries with our insurance company as to what their position might be should we consider a role for you in the company based on the medical reports available.  Anything further you might provide in this regard would be taken into account also.”

On August 30th 2023, the complainant provided a report from Mr Gildea, the Clinical Optometrist and Contact Lens Specialist in the Royal Victoria Eye and Ear Hospital.  Mr Gildea stated,

“[Mr O’Doherty’s] current vision in the right eye with his contact lens system was 6/7.5.  This meets driving standards.  I feel with Mr O’Doherty’s current level of corrected vision, he is able to resume normal activities in work.” 

Mr Gildea’s report was sent to the company’s occupational health consultant, Dr McDermott, who, on September 11th 2023, provided a report in which he stated,

“I received and reviewed a report prepared by Mr Cian Gildea, Clinical Optometrist and Contact Lens Specialist at the Royal Victoria Eye and Ear Hospital (dated 30th August 2023).  The report confirmed that Mr O’Doherty’s last assessment was with Mr Gildea on 19th April 2023, at which time, the contact lens assisted vision in Eamonn’s right eye improved his visual acuity to 6/7.5. The letter also suggests that Mr Gildea felt that Eamonn should be fit to meet the driving standards.  I assume that Mr Gildea was referring to Group 1 (e.g. standard car) driving licence as Eamonn does not meet the visual standard for Group 2 licensing (due to the absence of functional vision in his left eye).”

The complainant provided two further reports; one was from Dr Sarah Powell, senior house officer in ophthalmology at the Royal Victoria Eye and Ear Hospital.  Dr Powell stated, “we are happy for Eamon to return to work duties.”  A second report was from Mr Sajjad Ahmad, a consultant ophthalmic surgeon in Moorefields Eye Hospital in London.  Mr Ahmad stated,

"This is to confirm that Eamon's right visual acuity is 6/9 today with his contact lens and the intraocular pressure is 6 mmHg.  He continues on drops for his right eye but is managing well and feels that vision is good enough for him to return to work.  His visual acuities are now stable."

Dr McDermott reviewed the three reports from Mr Cian Gildea, Dr Sarah Powell and Mr Sajjad Ahmad.  He also considered the opinion of the complainant’s optician in Tipperary, Ms Grace Durkan.  On October 11th 2023, he wrote as follows to Mr Gleeson:

“I had previously reviewed Mr. Gildea's and Ms Durkan's respective reports.  I have now reviewed Dr Powell's and Mr Ahmad's medical reports.  The information in these reports would not lead me to change the advice that I have provided (in my previous reports) to date.

As requested, I have forwarded all the documentation and reports I have on this case to Dr Declan Whelan who is a fellow Specialist in Occupational Medicine and former Dean of the Faculty of Occupational Medicine of the Royal College of Physicians in Ireland.  I will also forward copies of the reports above to Dr Whelan as part of his review.

I had a brief phone call with Dr Declan Whelan this morning (Wednesday 11th October).  Dr Whelan has asked that we arrange a further review for Mr O'Doherty with Dr Treacy Medical Optics in order to perform a repeat visual field (Esterman) test.  However, Dr Whelan also indicated that, based on his initial review of the documentation/reports received, Group 2 driving (trucks/heavy machinery etc.) would not be advisable.  Furthermore, having reviewed the detailed Specialist assessments / opinions, Dr Whelan feels that Mr O'Doherty may not have to attend him (Dr Whelan) in-person (unless Mr O'Doherty wishes to do so).

Dr Whelan will issue his final report when he has reviewed the repeat Esterman test report (along with the further documents above received from Mr O'Doherty)."

The complainant declined the request to attend for a second appointment with Dr Treacy for a repeat Esterman examination.  In correspondence with Mr Gleeson, he said that he would not attend an appointment with Dr Whelan.  Dr Whelan reviewed the reports provided to him by Dr McDermott and, on January 12th 2024, he provided the following report:

"The following are my observations on the above-named patient's medical fitness for work which are based on the various medical reports provided.

Mr. O'Doherty is a 38-year-old male who sustained extensive eye injuries in an accident at work on the 27/06/2017 when hydrochloric acid splashed into both eyes.  He has had extensive treatment to his right eye and attains a corrected distant visual acuity of 6/7.5 with the aid of a piggyback lens system comprising of a soft lens with corneal gas permeable lens over it.  These are worn daily.  He has no functional vision in his left eye as a consequence of an opaque cornea secondary to his accident.

Of note is the patient's past medical history of glaucoma in his right eye which required the insertion of a drainage valve due to excessively high pressures.  I note Dr Treacy's finding of glaucomatous cupping of the right optic disc confirmed on ocular coherence tomography.

In relation to this patient's medical fitness for truck (photograph provided) driving I would consider that he is medically unfit to drive such trucks as he is medically unfit to hold a group 2 licence.  I would further advise that he is medically unfit to operate the heavy machinery including loaders, stackers, telehandlers (photographs provided) and forklifts.  This is due to his documented visual deficit and the associated risks associated with operating such heavy machinery in the confines of the concrete enterprise.  Risk in this context may be defined as the risk of an accident occurring multiplied by the consequences of such an accident arising out of impairment from an underlying medical condition.  The consequences of any such accident in this instance would be significant.  In relation to the duties which this patient would be fit to undertake in the context of his current place of work I would consider that he would be fit to undertake clerical type duties in an office setting.

I have not addressed this patient's medical fitness to hold a Group 1 licence due to the fact that there was insufficient information provided in this regard in the case notes provided.  This has implications for the search for alternative duties which might be under consideration.  In this context I refer to the R.S.A. medical fitness to drive guidelines April 2022 (11th edition).”

When he received Dr Whelan’s report from Dr McDermott, on January 19th 2024, Mr Gleeson wrote to the complainant and invited him to comment on Dr Whelan’s finding that he was unfit to drive trucks categorised under the Group 2 licence and that he was unfit to drive other heavy machinery.  Mr Gleeson informed the complainant that he was considering any other suitable positions that may be available in the circumstances where the complainant could not return to his contractual role as a driver.  He also informed him that, if a suitable role wasn’t found, his employment would be terminated. 

The complainant and Mr Gleeson met on January 26th 2024.  The complainant was again accompanied by a colleague.  In his submission, Mr Deegan provided a summary of the minutes of that meeting:

1.      In his report of September 11th 2023, Dr McDermott had changed the opinion he communicated in his report of March 23rd 2023, when he indicated that the complainant was capable of driving Group 1 vehicles.

2.      The complainant felt that he was justified in not attending any further medical assessments to which he had been invited.

3.      Mr Gleeson summarised the roles that the complainant could not carry out, including driving trucks and operating hazardous machinery such as forklifts and loaders.

4.      Mr Gleeson told the complainant that he would see if he could identify an office-based job that he could do.

5.      The complainant enquired about a sales job, for which he said that he could use his own car on his own insurance.

Termination of the Complainant’s Employment

Following the meeting of January 26th 2024, Mr Gleeson wrote to the complainant.  In his letter, he referred to the complainant’s job as a driver of trucks, tippers or ready-mix vehicles and the operator of loaders, telehandlers and forklifts.  He said that, in the absence of any further report from Dr Martin Treacy, which the complainant had declined to attend, the opinion of Dr Whelan was that the complainant was not fit to hold a Group 2 licence and not fit to driver other heavy machinery.  Mr Gleeson concluded that the complainant was not fit to undertake his contractual duties.  Mr Gleeson said that there was no suitable role in the company for the complainant and that he was not in a position to create a role for him.  He informed the complainant that his employment was terminated with effect from February 6th 2024.

On February 20th 2024, the complainant wrote to Mr Gleeson and indicated that he wished to appeal against the decision to terminate his employment.  He submitted the grounds for his appeal on July 18th 2024 and he submitted this complaint to the WRC on July 31st.  An independent consultant heard the appeal on August 16th 2024.  Due to the expiry of the time limit for submitting an appeal, the consultant decided not to uphold the appeal. 

Summary of this Complaint

The complainant claims that he has been discriminated against by reason of his disability and that he has been victimised by being treated differently to others.  He also claims that his employer has failed to provide him with reasonable accommodation to enable him to return to work.

Introduction

Opening his submission on behalf of the complainant, Mr O’Donnell quoted from his contract of employment dated October 10th 2025, which describes his duties as “the operation of machinery and trucks, maintenance of same and other duties as may be assigned by the employer or his representatives.”   

Mr O’Donnell said that the conclusion reached by Dr McDermott on June 23rd 2023, to the effect that the complainant was “…medically unfit to drive such trucks as he is medically unfit to hold a group 2 licence” was “an overly simplistic summary” of the complainant’s situation and disregarded his eligibility for a Group 1 licence. 

In a reply to Mr Gleeson on July 21st 2023, the complainant identified roles that he could have done.  Mr O’Donnell suggested that the respondent replied by proposing a disciplinary meeting to consider the dismissal of the complainant on the grounds of capability to carry out his contractual role.  Mr O’Donnell submitted that the respondent placed the sole responsibility for identifying an alternative role on the complainant.

Although, in his letter of January 19th 2024, Mr Gleeson said that he was considering other suitable positions that may be available for the complainant, no alternative roles were ever identified.  In the letter of February 6th 2024, the complainant was dismissed on the basis of being “medically unfit to hold a Category 2 licence and unfit to drive other specified heavy machinery.”  In his letter, Mr Gleeson said that there were no suitable positions available and that the company was not in a position to create a role for the complainant.

Medical Reports

On March 23rd 2023, Dr John McDermott gave his opinion that the complainant’s eyesight was not adequate to drive Group 2 vehicles, but that he had regained a good degree of vision in his right eye which was sufficient to allow him to resume driving his car.

On May 18th 2023, Ms Grace Durkan provided a report to the respondent indicating that the complainant’s visual acuity was 6/8 or .75, exceeding the NDLS requirement of 6/12 or .5.

On May 30th 2023, Dr Martin Treacy provided a report stating that the complainant’s visual acuity was 6/9.5 or .63, again satisfying the visual acuity standard of 6/12 or .5.  in his report, Dr Treacy stated that the complainant would need to have “a normal Esterman test result at this practice before I could advise him that he would be eligible for a Group 1 driving licence.”  Dr Treacy noted that the complainant was aware that he was not eligible for a Group 2 licence, but that his “local optometrist has passed him for a Group 1 licence.”

Mr O’Donnell referred to Dr McDermott’s report of June 23rd 2023, which he claimed, contradicts his earlier report of March 23rd, in which he stated that the complainant was eligible for a Group 1 licence. 

Mr O’Donnell referred to the report of Mr Cian Gildea of the Royal Victoria Eye and Ear Hospital dated August 30th 2023.  Mr Gildea stated that the complainant’s eyesight was adequate for driving.  Mr O’Donnell referred to the report of Dr Sarah Powell of September 11th 2023, in which she stated that she was happy for the complainant to return to work.

On September 11th 2023, Dr McDermott wrote to Mr Gleeson and, referring to the report of Mr Gildea, he said that he assumes that Mr Gildea is referring to a Group 1 licence, but that this does not alter his opinion expressed in his reports of March 23rd and June 23rd 2023.  Mr O’Donnell pointed out that these two reports contained conflicting opinions.  In March, Dr McDermott stated that the complainant was eligible for a Group 1 licence and in June, he stated that he would require further assessment to make the same determination.

Mr O’Donnell referred to the report of Mr Sajjad Ahmed, consultant ophthalmic surgeon in Moorefields Eye Hospital in London, who stated that the complainant’s visual acuity in his right eye was 6/9 or .67, and that his vision was stable enough to allow him to return to work. 

On December 1st 2023, Dr Declan Whelan wrote that he had insufficient information to address the complainant’s fitness to hold a Group 1 licence.  Mr O’Donnell referred to the fact that, by December 2023, five experts had assessed the complainant’s visual acuity at above the minimum requirement for a Group 1 licence, including Dr Whelan himself, who assessed him at 6/7.5, or 0.8.

Although his employment was terminated on February 6th 2024, the complainant submitted a report dated June 12th 2024 from Mr Cian Gildea to the respondent.  Mr Gildea reported as follows:

“To whom it may concern,

Mr O’Doherty is a patient of mine at the Royal Victoria Eye and Ear Hospital.  Mr O’Doherty became known to me after a work accident which resulted in the loss of the sight in his left eye and corneal graft and limbal stem cell transplant in the right eye.  This work accident happened some seven years ago.

Thankfully, with a piggyback contact lens system in the right eye, Mr O’Doherty achieves corrected visual acuity of 6/7.5.  Mr O’Doherty holds a Group 1 driver’s licence and a loading shovel ticket issued by Solas.  As per the NDLS guidelines for Group 1 licences, Mr O’Doherty has completed an Esterman Binocular Visual test, with only 5 points missing and in no pattern of a described visual field defect.  No points were missing in the central 20 degrees of fixation.  Mr O’Doherty has also completed a full functional period of adaptation of 12 months.

I believe the criteria outlined in the NDLS medical fitness to drive have been met for a Group 1 licence.” 

Mr O’Donnell submitted that, despite the respondent waiting for several months for their own experts to produce a report, they were unwilling to allow the complainant the same courtesy and his appeal against his dismissal went unheard.

Appeal of the Decision to Terminate the Complainant’s Employment

Although he was dismissed on February 6th 2024 and he submitted the grounds for his appeal five months later, on July 16th, the respondent agreed to hear the complainant’s appeal against the decision to dismiss him.  However, in his appeal hearing report, the independent consultant, Mr Steve Sands, concluded that, because the complainant’s appeal against the termination of his employment was not submitted within the time limit set out in his letter of dismissal, his appeal was not upheld. 

Referring to his entitlement to notice and the provisions for an appeal in his contract of employment, Mr O’Donnell submitted that the appeal process was “a sham, seriously flawed and in breach of the Respondent’s own procedures and policies.” 

Legal Submission

Mr O’Donnell referred to the decision of my colleague adjudicator, Ms Valerie Murtagh in Marie O’Reilly and Chadwicks Group[1] where Ms Murtagh referred to the publication, Employment Equality Law by Marguerite Bolger, Claire Bruton and Clíona Kimber [2].  Addressing the case law on the duty of an employer with regard to reasonable accommodation, the authors wrote:

“In summary, the case law expects that an employer is proactive in considering all the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the needs of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment).”

The adjudicator found that the respondent placed an over-reliance on and misinterpreted the occupational health reports and that the medical report had been misquoted to attempt to justify the decision to terminate the complainant’s employment.

Mr O’Donnell referred to the findings of the Labour Court in A Government Department v A Worker[3] where the Court held that,

“The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper assessment of the situation before decisions are taken which may be of detriment to the disabled employee…This necessarily involved discussing the matter with the employee or their medical advisors.”

It is the complainant’s position that, in deciding to terminate his employment, the respondent failed in their duty in the following ways:

1.      They relied solely on their own medical reports and disregarded those provided by the complainant.

2.      They disregarded the opinion of the complainant’s medical advisors that he was fit to return to work.

3.      They failed to investigate the conflicts of opinion between the complainant’s and their own medical advisors.

4.      They failed to consider the conflicts in Dr John McDermott’s reports of March and June 2023.

5.      They failed to consider the type of vehicles that fall within Group 1 licences, and in this way, caused their medical experts to wrongfully exclude the complainant’s ability to use and operate certain Group 1 machinery.

6.      They disregarded the fact that the complainant held a Group 1 licence and a front-end loader ticket before he was medically assessed by the respondent’s experts.

Referring to s.16(3)(b) of the Employment Equality Act 1998, and the requirement for an employer to take appropriate measures to enable a person with a disability to have access to employment or to advance in employment, Mr O’Donnell cited the decision of the Supreme Court in Nano Nagle School v Marie Daly[4], where the Supreme Court confirmed this to be a “mandatory primary duty of an employer.”

Referring back to Marie O’Reilly and Chadwicks Group (footnote 1), Mr O’Donnell quoted from the adjudicator’s concluding remarks:

“The case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to an employee.  In the within matter, I find that there was a failure by the respondent to consider reasonable accommodation measures to allow the complainant continue in her employment by way of a hybrid role to include the possibility of working from home or modifications to the complainant’s existing role…”

Mr O’Donnell submitted that, on the basic facts of this case, the complainant has established a case of discrimination.  He based this conclusion on the following assertions:

1.      In 2021, the respondent initially accommodated the complainant by providing him with office work, but his sight had not sufficiently improved at that time.  No such office-based role was considered when the complainant was certified as fit to return to work in 2023. 

2.      In early 2022, the complainant was invited to attend refresher training on the operation of a loading shovel.  He already had a valid loading shovel ticket, although he was not invited to return to work at that time and a loading shovel job was not considered when he was at risk of termination.

3.      Early in 2022, Mr and Mrs Gleeson called to the complainant’s home and told him that there would be a job for him when he was fit to return to work.  When he was fit, Mr O’Donnell claims that the respondent reneged on this commitment.

4.      Despite repeatedly advising the complainant that alternative roles would be considered, when he notified the complainant of his dismissal, Mr Gleeson concluded that the company was not in a position to create a new job for him.

5.      Mr O’Donnell submitted that the respondent failed to follow its own disability procedures.

6.      He submitted that Mr Gleeson disregarded the complainant’s experts and failed to consult his treating experts and to engage with them in a risk assessment.

7.      The complainant was not considered for part-time work, although other employees were considered.

8.      He was not considered for re-training or the adaptation of existing facilities to enable him to return to his job.

Mr O’Donnell submitted that the complainant’s colleagues who did not have a disability were not treated in this manner.

Failure to Make Out the Essential Elements of an Equality Complaint

On behalf of the respondent, Mr Deegan submitted that the complainant has failed to identify any comparator, but that he has made a generalised remark that he “can provide names of comparators at the hearing if required.”  Mr Deegan argued that such a statement is not sufficient to ground a complaint of discrimination.

Reasonable Accommodation

Mr Deegan referred to s.16(3)(b) and (c) of the employment Equality Acts 1998 – 2015 (“the Act”) which imposes obligations on an employer to provide an employee with reasonable accommodation during the currency of their employment. 

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(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 business, and

(iii) the possibility of obtaining public funding or other assistance.

At s.16(4), "appropriate measures", in relation to a person with a disability,

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself[.]

Mr Deegan also referred to the decision of the Supreme Court in Nano Nagle School v Marie Daly (footnote 4), where, he said, the extent of an employer’s obligation to provide reasonable accommodation has been authoritatively set out by Mr Justice McMenamin as follows:

"The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee.  It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job. ...

But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one.  There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa.  The question is, rather, to consider whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer.  Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate.  It is a matter of degree, capable of being determined objectively."

The application of this decision was considered in April 2021 by the Labour Court in the case of HSE v Monica McEntee[5].  Ms McEntee alleged that the HSE had failed to comply with its obligations under the Act because they had not provided her with an alternative role to accommodate her disabilities.  In rejecting her appeal, the Court summarised the relevant section of the Supreme Court’s decision in Nano Nagle as follows:

"... the section does not impose an obligation on an employer to create an alternative job for an employee with a disability - the obligation is merely to provide appropriate measures (that do not impose a disproportionate burden on the HSE) that can facilitate an employee with a disability to fulfil the requirement of the job for which they have been hired.”

Mr Deegan referred to a second Labour Court decision of November 2022 involving the HSE, Marie O’Shea v HSE[6], where the Court considered the obligation to provide reasonable accommodation and the application of the Nano Nagle case.  Ms O’Shea was a paramedic who, due to a disability, was unfit for normal duties but capable of doing work that did not involve lifting.  The Court decided that the HSE was not obliged to find alternative employment for an employee who, because of a disability, is unable to perform the job for which they were hired.

Mr Deegan asked me to interpret these decisions in light of the decision of the Court of Justice of the European Union (CJEU) in case C-485/20 XXXX v HR Rail SA (“the HR Rail decision”).  In this case, the employer, learning that an employee had a medical condition that prevented him from carrying out an essential part of his job, assigned the employee to a different job, but then dismissed him because of medical incapacity.  In subsequent proceedings, the employer argued that it could not be obliged by Council Directive 2000/78/EC, which is transposed into law In Ireland by the Employment Equality Act 1998, to assign the employee to a job other than the role for which he had been employed.  The CJEU found as follows:

"Article 5 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the concept of 'reasonable accommodation’ for disabled persons, within the meaning of that article requires that a worker, including someone undertaking a traineeship following his or her recruitment, who, owing to his or her disability, has been declared incapable of performing the essential functions of the post that he or she occupies, be assigned to another position for which he or she has the necessary competence, capability and availability, unless that measure imposes a disproportionate burden on the employer."   

Mr Deegan submitted that the apparent breadth of this decision was significantly constrained by the CJEU in some respects.  At paragraph 45, the CJEU stated,

"However, it should be observed that Article 5 of Directive 2000/78 does not oblige an employer to take measures which would impose a 'disproportionate burden' on it."

At paragraph 48, the CJEU stated,

"In addition, it should be stated that, in any event, the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding.”

Mr Deegan submitted that “these crucial caveats” mean that the HR Rail decision is aligned to the Nano Nagle decision and both judgements make it clear that an employer is not obliged to invent a new job for an employee who has a disability.  The CJEU went further than the Supreme Court when it held that an employee with a disability might be assigned to a different role, but,

a.      Only where a vacancy for such a different role exists and,

b.      Not where taking such a measure might entail imposing a disproportionate burden on the employer.

Mr Deegan referred to the decision of the CJEU in case C-631/22 JMAR v Ca Na Nagreta SA, where the Court held that,

"where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, reassignment to another job may constitute an appropriate measure in the context of reasonable accommodation"

Mr Deegan pointed out that, in its decision on this case, the Court reiterated the caveat it has set out in the HR Rail decision in the following way:

"It should be noted that Article 5 of Directive 2000/78 does not oblige an employer to take measures which would impose a disproportionate burden on it.  In that regard, it follows from recital 21 of that directive that, in order to determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.  In addition, it should be stated that, in any event, the possibility of assigning a disabled person to another job is only available where there is at least one vacancy that the worker in question is capable of holding…”

Mr Deegan submitted that the complainant was not medically capable of carrying out his contracted role as a truck driver because he no longer qualified for a Group 2 driving licence.  The respondent made diligent efforts to create a role for him in 2021, when the circumstances permitted, but he was not medically capable of carrying out that alternative, office-based job.  When he was dismissed in February 2024, there were no vacant roles available for which he was capable.  Therefore, Mr Deegan asserted that there was no failure to provide reasonable accommodation to him.

Responding to questions from Mr O’Donnell, the complainant said that he started working for the respondent was he was 19, and, although he had a licence to drive a lorry, it wasn’t legal to drive on the public road until he was 20.  From then on, he worked mainly as a truck driver, but he spent a lot of days in the quarry, working on equipment such as fork trucks, teleporters, loading shovels and stackers.  He said, “in the yard, a car licence will do you” and he referred to two employees who do not have truck licences and have been operating machinery for 30 and 40 years respectively.

In 2018, when he was absent due to his injury, the complainant signed a new contract of employment.  He said that he can’t remember how it came about that he was issued with a new contract and he doesn’t remember if Mr Gleeson called to his house with it.  In this document, which was produced at the hearing, the complainant’s job is described as a driver and that his duties are,

“…general quarry work, the operation of machinery and trucks and the maintenance of same, manual work and other general duties.”

This is different from his original contract, issued in 2005, which doesn’t specifically state that he is employed as a driver, but that his duties are,

“General quarry work including operation of machinery and trucks, maintenance of same and other duties as may be assigned by the employer…”

The complainant accepts that he signed the new contract on July 25th 2018.  He said that, at the time, he was hopeful of getting back to work.  He said that the change in the description of his duties wasn’t pointed out to him.

Mr O’Donnell asked the complainant about his effort to return to work in 2021.  He said that he was approached by Mr and Mrs Gleeson.  He was trying out new lenses at the time to see what might work best.  He said that it was too early to go back because the lenses kept failing and his eyes were tired by 11.00am.  He lasted about 10 days.  He said that he accepts that the Gleesons tried to help him to get back to work at that time.

In 2022, the complainant said that Mr and Mrs Gleeson called to his house and said that there would always be a job for him in the yard.  He said that they told him that a young lad was “minding my job.”

The complainant said that it took a long time to find the right lenses and his eyesight improved.  In November 2022, he passed a medical for a licence to drive a car, a tractor and a car with a trailer.  He said that he was able to return to work then.  He said that he had a ticket for a front-end loader and that there was nothing in the yard that he couldn’t drive.  He said that all the equipment used in the yard is covered by a Group 1 licence.

The complainant said that he heard no more from the respondent until late January or early February 2023, when he was told by Mr Gleeson that there was no work for him.  They had kept on a young man that had been recruited in 2022.  He said that he was stunned and upset by this and that he loved his job.  He said that it was upsetting to be treated this way after all the effort to get a Group 1 licence.

The complainant referred to his assessment by the occupational health consultant, Dr John McDermott.  He recalled that Dr McDermott sent him for an examination by Dr Martin Treacy in Bray.  Both Dr McDermott and Dr Treacy reported that he was unfit for work as a driver.

The complainant said that, since the accident in 2017, he has had six or seven operations.  He was treated in the Royal Victoria Eye and Ear Hospital in Dublin by Mr Cian Gildea and in Waterford and in Guys Hospital in London.  He referred to the visual acuity figure that determines fitness for driving.  He said that the nearer you get to 6/6, the better your eyesight.  Mr Gildea in the Eye and Ear Hospital had assessed his visual acuity at 6/7.5 in his right eye.

Mr O’Donnell referred to the fact that Mr Ahmed from Moorefields Eye Hospital in London had stated that the complainant was fit to return to work. 

The complainant said that Dr McDermott wrongly assessed the machinery in the yard, such as teleporters, loading shovels, stackers and fork trucks as Group 2 vehicles, whereas, he said that these are all classed as Group 1 vehicles.  He said that this conclusion was “a nail in my coffin.”

Mr O’Donnell referred to a letter that the complainant sent to Mr Gleeson on July 21st 2023 in which he listed the jobs that he considered suitable for him to do:

§  Office-based duties;

§  Ready-mix plant operator;

§  A sales job using his own transport.

Regarding the office-based job, the complainant said that his vision was stable and he should have had a chance to go back into the office.  He said that the Ready-mix job is computerised and that a man was recruited to do that job three years ago.  He said the person working as a sales representative had retired and he thought he would be a good fit for that job.  He said that the person in the job who retired was driving his own car on his own insurance.

The complainant said that no alternative role was proposed, although Mr Gleeson consistently said that he would consider an alternative.  Eventually, his employment was terminated in a letter that he received in the post on February 6th 2024.  He said that, at first, he decided not to appeal against the dismissal, but that his parents and brothers had seen how much he went through and they persuaded him to appeal.

The complainant said that he thinks the mood in the company has changed since he received the settlement of his personal injury claim and that it was very hard to hear that there was no job for him.  He described his situation as “disheartening and wrong.”  He said, “a day’s work will bring back my sanity” and he said that he was prepared to work full-time or part-time.

In January 2022, the complainant said that he was contacted by Mr Gleeson and invited to come to the yard to do training for the operation of a loading shovel.  He said that his ticket for the loading shovel hadn’t expired, but, in any event, his eyesight wasn’t good in January 2022 and he didn’t do the training.  He said that he sent his ticket to the foreman.  He thinks that the company was trying to make things look good for themselves in advance of the court case which was scheduled for February.  The case was settled on February 8th 2022 and three weeks later, Mr and Mrs Gleeson called to his house and told him that there was a job for him in the yard when he was ready to come back.  They told him that there was a young fella in the yard on a temporary basis.  By November that year, he was told that there was no job for him.

Asked about other people with disabilities working for the company, the complainant said that there are “definitely two people” with disabilities who are being accommodated.  He did not provide the names of these employees.

Asked about his current job as a school bus driver, the complainant told Mr O’Donnell that, when he knew that he wasn’t going to be taken back by the respondent, he decided to look for another job.  He got a public service vehicle licence which is covered under the Group 1 classification.  He now has a job under contract with Bus Éireann and he works on a self-employed basis for six hours a day. 

Cross-examining of the Complainant by Mr Deegan

Mr Deegan commenced by referring to the complainant’s situation when he joined the company in 2005, when he wasn’t legally permitted to drive a truck.  He replied that he was “driving everything that needed to be driven.”  On days when it wasn’t possible to drive the truck, and on wet days, he operated the loading shovel.  He said that he was “solely a general operative” when he started.  From January to March every year, the business was very quiet and he said that he sometimes never left the yard. 

Mr Deegan asked the complainant about the contract he signed in 2018, which refers to his job as that of a driver.  The complainant said that he didn’t read the contract, and that Mr Gleeson was promising him a job.  He agreed that, on the day of the accident in June 2017, he was working as a truck driver.

Mr Deegan asked the complainant if Mr Gleeson called to his house several times after the accident in June 2017.  The complainant replied that Mr Gleeson’s uncle phoned him often and that Mr Gleeson called about once a year.  Mr Deegan reminded the complainant that Mrs Gleeson got more involved in the business from 2021 onwards and that she visited him at home and that it was not unheard of for the Gleesons to call to his house.  The complainant replied, “not very often,” but he then agreed with Mr Deegan that it was not unprecedented for them to visit him.

Referring to his return to the office in 2021, the complainant said that no one had the job that he was asked to do.  He said that he was in a corner of the office and the equipment only arrived after he decided that his sight wasn’t recovered enough to continue.  He said that he was replaced by someone else.  Mr Deegan said that Mrs Gleeson’s evidence will be that a salesperson left and that this facilitated a re-configuration of duties.  The complainant referred to a person employed in sales who spent about two hours a day in the office before going out on the road.

Mr Deegan said that there was a requirement for more administrative support in the office and that a job was designed for him.  Someone else was recruited for that job when he left after two weeks.  He said that the respondents took the opportunity to create a role for him with good intentions.

Mr Deegan said that Mr Gleeson’s evidence will be that he encouraged the complainant to “push ahead” with the personal injury claim.  The complainant agreed that Mr Gleeson “said it to me once.”  Mr Deegan said that the company was insured and that the settlement was covered by the insurance.  He said that there was never animosity between the complainant and Mr Gleeson.  The complainant did not agree.  He said that, since the settlement, there has been no offer of any job, whereas, in January 2022, he was asked to do a course on the loading shovel.  The complainant agreed that he did a safe pass course in 2018 with the hope of being able to return to work.

Mr Deegan referred to the loading shovel course and he asked the complainant to confirm if a loading ticket can be renewed online and that medical verification is not required.  He said that Solas did not verify the complainant’s medical capacity to operate a loading shovel and he relied on the fact that he had a licence before the accident.  The complainant replied that “Anyone can renew a licence online” and he asked, “Why would I be assessed?”

The complainant agreed that, while he was out sick from June 2017 until December 2022, he was paid by the respondent.  He said that he was paid €200 per week by the respondent after the accident and he received illness benefit from the Department of Social Protection.  In 2020, he was moved to a disability benefit.  In his current job as a driver, he said that he earns €257 per day while the schools are open.

Mr Deegan suggested to the complainant that “Things look better than they did in 2019.”  He received a settlement of his personal injury claim of €1,000,000, which, Mr Deegan asserted, was for a more negative circumstance than what transpired.

Mr Deegan put it to the complainant that the Gleesons called to his house in March 2023 because they wanted to let him know that they were taking on someone else.  Mr Gleeson named the person who was recruited early in 2022.  The complainant replied that they had told him that there would always be a job for him in the yard.

Mr Deegan referred to a conversation the complainant had with Mr Gleeson on November 15th 2022, when he told Mr Gleeson that he was making progress and that he hoped to return to work.  The complainant said that, on that date, he was able to go back immediately.  Mr Deegan reminded that complainant that, on that day, Mr Gleeson told the complainant that the payment of his sick pay would come to an end.  Regarding a return to work, Mr Gleeson told him that there was “nothing there at present, but maybe in the Spring.”  Mr Deegan said that Mr Gleeson’s evidence will be that he said that any return to work would be subject to a medical assessment.

Mr Deegan referred to an email that the complainant sent to Mr Gleeson on February 15th 2023, in which he referred to their conversation the previous November.  The complainant wrote,

“I have seen you have stopped my wages so I really need to know where exactly I stand going forward or with an exact date as to when I will be returning to employment.”

Mr Gleeson arranged for the complainant to be seen by an occupational consultant and Mr Deegan referred to the report of Dr John McDermott following his examination of the complainant on March 23rd 2023.  Dr McDermott confirmed in his report that the complainant had “adequate vision for Group 1 driving” and that he wanted this to be confirmed by his optician.  Dr McDermott said he may be suitable for a job in sales or in the office.  On March 28th and May 10th 2023, Mr Gleeson wrote to the complainant in response to his queries about returning to work.  He said that Dr McDermott was waiting for a report on the outcome of his appointment with his optician before providing a final opinion.

Mr Deegan took the complainant through the subsequent correspondence from Dr McDermott on May 12th in which he said that he had no reply from the complainant’s optician, Ms Grace Durkan and he asked him to attend for an assessment with Dr Martin Treacy.  Dr Treacy’s report of May 30th 2023 was described by Mr Deegan as “very negative,” as Dr Treacy reported that the complainant would have to have “a normal Esterman test result at this practice before I could advise him that he would be eligible for a Group 1 driving licence.”  The complainant replied, “I’m going by my own optician.”

Mr Deegan referred to the conclusion of Dr John McDermott in his report of June 23rd 2023 in which he said that the complainant was not eligible for a Group 2 licence and that he was unable to confirm his eligibility for a standard car licence.  Mr Deegan referred to Mr Gleeson’s letter of July 17th in which he invited the complainant to provide any medical evidence of his own for review by Dr McDermott.  In the same letter, Mr Gleeson put the complainant on notice that his employment may be terminated if a suitable alternative role could not be identified or unless significant contrary medical evidence could be provided to justify a change in the medical opinion already received.

Mr Deegan referred to the letter of August 4th 2023 from Mr Gleeson in which he invited the complainant to attend a meeting on August 11th.  Mr Deegan referred to the minutes of that meeting, at which the complainant expressed an interest in a job in the Ready-mix batching plant, a job managing the paperwork to do with transport and maintenance of trucks or a job as a sales representative.  The note of the meeting indicates that the complainant expressed a preference for a role in sales.  Mr Gleeson wrote again to the complainant on August 24th and asked him again to provide any medical report to support his case that he was capable of returning to a role in the company.  Mr Gleeson also indicated that he would make enquiries with the company’s insurers to see what their position was regarding the complainant’s employment in the company.

Mr Deegan referred to a letter dated August 30th 2023 from Mr Gildea in the Eye and Ear Hospital in which he said that the complainant’s vision with his contact lens system was adequate for driving and that he was fit to resume “normal activities at work.”  Mr Deegan asked the complainant to comment on the fact that the letter does not refer to driving hazardous machinery.  The complainant referred to the letter dated September 11th 2023, from Dr Sarah Powell, an ophthalmologist in the Eye and Ear Hospital in which she wrote, “We are happy for Eamon to return to work duties.”  Mr Deegan referred to the letter from Mr Sajjad Ahmad in Moorefields Hospital in London dated October 5th 2023 in which he said that the complainant feels that his vision is good enough for him to return to work.  Mr Deegan put it to the complainant that Mr Ahmad makes no reference to driving.

Mr Deegan referred to the letter dated October 11th 2023 from Dr McDermott in which he listed the reports submitted by the complainant for consideration by him:

1. Mr Sajjad Ahmad- Moorfields Eye Hospital- London (dated 5th October 2023)

2. Dr Sarah Powell- Royal Victoria Eye & Ear Hospital (dated 11th September 2023).

3. Mr Cian Gildea- Royal Victoria Eye & Ear Hospital (dated 30th August 2023).

4. Ms Grace Durkan, Optician (dated 18th May 2023)

In his October 11th letter, Dr McDermott said that he sent these reports to a specialist in occupational medicine, Dr Declan Whelan, with whom he had a telephone conversation on the same day.  Dr McDermott wrote that Dr Whelan recommended that the complainant return to Dr Treacy in Medical Optics in Bray for another Esterman visual field test.  He said that Dr Whelan would issue a final report when he had the outcome from that test.  In his evidence, the complainant said that he didn’t return to Dr Treacy for a repeat Esterman test because he felt that the outcome would be the same as the last time.

On October 19th, the complainant sent an email to Mr Gleeson in which he said, “I will have to decline I have nothing to gain from these appointments only to be told the opposite of what my consultants here and abroad are saying…”  He closed his email by requesting a redundancy payment. 

On October 24th, Mr Gleeson wrote to the complainant and asked him to attend the repeat Esterman test and an appointment with Dr Declan Whelan.  When he declined the opportunity to be re-assessed, Mr Gleeson wrote to him on November 8th 2023 and said that he would make a decision about the complainant’s future with the company when he had received a report from Dr Whelan, who would reach a conclusion without results from a repeat Esterman test.

On January 12th 2024, Dr Whelan wrote to Dr McDermott and stated that the complainant’s eye condition was such that he was not suitable for Group 2 driving and not suitable for operating heavy machinery such as that used in the respondent’s yard.  He said that he could not assess his fitness for a Group 1 licence due to the absence of information in the case notes and he recommended that the complainant was suitable for a clerical position in an office setting.

Referring to the photographs of equipment provided to Dr Whelan for his assessment of the complainant’s capacity to work in the yard, Mr Deegan said that the conclusion was that he was not medically capable of operating these machines.  The complainant replied, “That’s what he says.”

Mr Deegan referred to the meeting which took place on January 26th 2024, following a letter from Mr Gleeson to the complainant in which he said that the purpose of the meeting was for the complainant to comment on Dr McDermott’s and Dr Whelan’s reports and to consider what options were available.  At the meeting, the complainant asked if he could do “a salesman job” using his own car or a job in the office related to the maintenance of trucks.

Mr Deegan then referred to the letter of February 6th 2024, in which Mr Gleeson confirmed to the complainant that there was no suitable role in the business for him and that a role couldn’t be created for him.  The complainant replied the following day and said that he wouldn’t appeal against the decision to terminate his employment, but, in the end, he did appeal.  Mr Deegan referred to a letter dated June 24th 2024, from Dr Gildea in the Eye and Ear Hospital which he submitted as part of his appeal.  Dr Gildea stated that the complainant had completed an Esterman test and that he meets the fitness criteria for a Group 1 licence. 

At the end of his cross-examining, I asked the complainant about risks to his eyesight from working in the yard of a business that transports around concrete and sand.  He said that he didn’t see any risk to his eyesight from working in such an environment.

Before the conclusion of the hearing, I asked the complainant why he looked for redundancy.  He replied that there were no offers coming and he wanted to know where he stood.

Evidence of Mr Micheál Gleeson

Mr Gleeson said that his company has 29 employees comprising three who work in the block yard, four in the office, five in a separate Ready-mix and processing plant and the remainder as drivers.

Following the Covid-19 outbreak, Mr Gleeson said that a man employed as a sales representative came off the road and moved into an office-based job.  When this employee retired in 2021, he wasn’t replaced.

Mr Gleeson provided details of the office-based jobs:

One man works as a main despatcher and does transport paperwork and accounts.

A second person works on accounts payable and health and safety.

A third person works on accounts receivable and takes phone calls.

A fourth person works as a second despatcher.  His job is to ensure the efficient use of the trucks.  This person joined the business in January 2022.

Of the three people who work in the block yard, two have more than 30 years of service and one joined early in 2022.

Mr Deegan asked Mr Gleeson about the complainant’s working life in the business.  Mr Gleeson said that the complainant was one of their best drivers, and that he drove the first of their five axle trucks.  When he joined the company, he wasn’t licensed to drive on the road, and Mr Gleeson said that he paid extra insurance to permit him to drive from the quarry to the processing plant.

Since his accident in June 2017, Mr Gleeson said that he spoke to the complainant more than once a year.  He said that his uncle was in regular contact with him.

Mr Gleeson said that the company provides Safe Pass training for their employees every five years.  One employee had taken over the health and safety role in 2021, and Mr Gleeson said that he asked him to ask the complainant to do the loader shovel training.

Asked if he had any qualms about the complainant’s litigation against his company, Mr Gleeson said, “Eamon went to hell and back in the last few years.”  He said that he suggested to him to discuss the possibility of an interim settlement with the insurance company, so that his treatment could be funded.  The reason why it took so long to reach a conclusion on the personal injury case, was that the insurers didn’t know what the outcome of the treatment would be.

Asked by Mr Deegan about sick pay, Mr Gleeson said that he intended to pay the complainant while he was out sick for six to 12 months.  Then, the case went on so long, he said that he didn’t have the heart to stop paying him.

At the end of 2021 and early into 2022, Mr Gleeson said that he knew that the complainant had had a couple of setbacks.  He said that, in early 2022, the complainant’s sight was as bad as it had been five years previously.  He named a person who had left a job in the yard and he said that he told the complainant that they would take someone on.  Mr Deegan asked Mr Gleeson if he had promised the complainant that there would be a job for him.  Mr Gleeson replied, “We were always hopeful.”

In 2021, following the retirement of the salesman, Mr Gleeson said that there was an opportunity for the complainant in the office.  Between him and his wife, he said that they decided to give him a chance to try out a job.  Although it didn’t work out for the complainant, he said that everyone in the office was supportive.  When the complainant went out sick again, he continued to pay him sick pay.

Mr Gleeson said that he is upset at the inference that he had a problem with the litigation.  He said that he knew that the complainant’s sight was bad at the time of the litigation. 

Mr Gleeson said that the complainant rang him and told him that his sight had improved.  He said he was glad.  Mr Gleeson said that he kept the sick pay going until December 2022.  After that, the complainant wrote to him and asked him when he could come back to work.  He said that he told him that there would have to be a medical assessment.

Mr Deegan asked Mr Gleeson about the process for getting a “ticket” to drive a front loader.  He said that if a ticket-holder applies online before the expiry of the licence, a ticket is sent in the post.

In November 2022, Mr Gleeson said that there was no vacancy for a sales job, and that there were four people in the office, with no vacancy there.  Mr Gleeson said that, at that time, he thought that the complainant might be able to work in one of the smaller pits, but when he discovered that he wasn’t eligible for a Group 2 licence, that possibility was gone.

Mr Gleeson said that the machinery used in the yard is a big as the trucks they send out on the road.

Mr Deegan asked Mr Gleeson about the three roles identified by the complainant as suitable for him:

§  Office-based duties;

§  Ready-mix plant operator;

§  A sales job using his own transport.

Mr Gleeson replied that there was no vacancy in the office.  There are two people working in the Ready-mix plant and there is no longer a sales role in the company.

Mr Deegan asked Mr Gleeson why he didn’t make a decision about the complainant’s future after the meeting on August 11th 2023.  Mr Gleeson replied that he contacted Dr McDermott and he told him that the complainant didn’t accept his report.  That’s when Dr Declan Whelan got involved.  Dr Whelan thought that the results of the first Esterman test were inconclusive.  On January 12th 2024, he produced a final report, without the benefit of a repeat Esterman test.

Dr Whelan had recommended a clerical role for the complainant in an office setting.  Mr Gleeson said that there were no vacancies in the office.

After the meeting on January 26th 2023, Mr Gleeson said, “We had gone through the whole process.  The complainant couldn’t operate heavy equipment in the yard and there was no vacancy in the office.”  He said that he had no alternative but to let him go.

Cross-examining of Mr Gleeson

In response to a question from Mr O’Donnell, Mr Gleeson said that 75% - 80% of the complainant’s job was driving a truck.  On quiet days, he was given other work. 

Mr O’Donnell referred to the non-road vehicles used in the yard as Group 1 vehicles.  Mr Gleeson replied that that was a grey area.  He said that the vehicles are those used in a quarry.

Mr O’Donnell referred to the complainant’s Group 1 driving licence which was issued to him on November 22nd 2022.  Mr O’Donnell said that, as far as the complainant is concerned, Group 1 covers all the machinery in the yard.

Mr Gleeson replied that there are two issues to consider; firstly, is the person licenced to drive?  And secondly, are they medically fit to drive?

Mr O’Donnell referred to the first report from Dr McDermott in which he confirmed that the complainant was capable of driving under a Group 1 licence.  Mr Gleeson said that this gives him a licence to drive a car.  Mr O’Donnell suggested that a Group 1 licence goes beyond a motor vehicle.

Mr O’Donnell suggested that, in his report of June 23rd 2023, Dr McDermott “seems to be moving back” from his earlier opinion.  Mr Gleeson replied that the difference is because, when Dr McDermott wrote his second report, he had the assessment from Dr Treacy.

Mr O’Donnell referred to the four reports provided by the complainant to Dr McDermott.  Mr Gleeson described the reports as “quite vague” and said that they contained no specification about the job that the complainant was employed to do, but simply mentioned “return to work.”  He said that none of the four experts contacted the company, or the company’s occupational health consultants.

Mr Gleeson agreed with Mr O’Donnell that they sent photographs of the equipment used in the yard to Dr McDermott.  He said that they felt that the doctors were unfamiliar with work in a quarry.  Mr Gleeson said that he sent all the complainant’s reports to Dr McDermott and Dr McDermott wrote to the complainant and looked for information to support his case that he could return to work.

Mr O’Donnell referred to the policy on disability which is in the company’s employee handbook.  Mr Gleeson said that it is his view that he applied the policy by considering if the complainant could drive a truck, and the answer was “no.”  He said that the next question was if he could operate hazardous machinery and that answer to that question was also “no.”  Mr Gleeson said that, lastly, he considered an office job, but he hadn’t got a vacancy in the office.

Mr Gleeson agreed with Mr O’Donnell that he and his wife called to the complainant’s house a few weeks after the litigation case was concluded.  Mr Gleeson said that they had taken on a young person in the yard, and, out of courtesy, he wanted to tell him.

Mr Gleeson agreed that he encouraged the complainant to look for an interim settlement from his insurance company, to get funds freed up.  Mr Gleeson said that his insurance company was in touch with him.  He said that he was trying to be helpful.

Regarding the complainant’s appeal against his dismissal, Mr Gleeson said that he thought that the consultant would have considered the substantive issue and not just dismissed it because of the delay.  By the time the appeal came around to a hearing however, the complainant had already submitted this complaint and a complaint under the Unfair Dismissals Act.

Evidence of Ms Liza Gleeson

Mrs Gleeson gave evidence about the trial period that the complainant spent in the office in 2021.  She said that the man who had moved off the road into the office was retiring and there was a need for someone else.  She said that the three people remaining in the office were supportive of the complainant trying out a job.  She said that they treated him as a new person who would need time to adjust and, because his treatment was ongoing, they knew he would probably only be able to work for a couple of hours a day.  When he agreed to try out the job, Mrs Gleeson said that she contacted the National Council for the Blind and got a large monitor and a keyboard and a magnifying screen to enlarge the print on the dockets.  After about three weeks, Mrs Gleeson said that the complainant told her that the lenses weren’t working out and that he couldn’t continue.

Mrs Gleeson said that she and her husband called to the complainant at his home in early 2022.  She said that they wanted to let him know that they had taken on someone in the yard, and they wanted to see how he was.  She said that they never told him that there was a definite job for him.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Acts 1998 – 2015: 

“…discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2), in this Act, referred to as the ‘discriminatory grounds’…”

At subsection 6(2)(g), “the disability ground” islisted as one of the nine discriminatory grounds.

The complainant was dismissed because, due to damage to his eyesight, he couldn’t continue in his role as a truck driver.  As the victim of the tragic accident that caused him to lose his sight on June 27th 2017, he had no comparator, and he submitted no argument that another person in the same or similar circumstances was treated more favourably than he was treated.  The substance of his claim is that he was discriminated against because, by not giving him a job that he could do with his disability, the respondent failed to provide him with reasonable accommodation.

Reasonable Accommodation for a Disability

The obligation of an employer to provide “appropriate measures” to a person with a disability to enable them to take up a job, or to continue in employment, is set out at s.16 of the Act.  This legislative provision has evolved from s.16(1) of the 1998 Act, where the focus was on the job and the conditions under which it was to be performed, to an obligation on the employer, inserted by subsections (3) and (4) of the Equality Act 2004.  At s.16(1), the onus is on the employee to demonstrate that they are capable of doing the job and there is no obligation on the employer to take any action to make that happen:

(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.

Subsection (2) is not relevant to the consideration of this complaint.  Subsections (3) and (4) have the effect of “carving out an exception” (see Nano Nagle below) to section 16(1) by the introduction of the requirement for appropriate measures to support the employment of a person with a disability:  

(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 a disability -

(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.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself[.]

(The remainder of this subsection (c) is not relevant to the complaint under consideration here).

At paragraph 84 of the majority decision in Nano Nagle, Mr Justice McMenamin addressed the effect of s.16(3) on s.16(1):

“Section 16(1) sets out a premise.  That, is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regard to the conditions under which the duties are to be performed.  But the effect of the terminology of s.16(3) is unavoidable.  It carves out an exception.  It provides that, for the purposes of the ‘section,’ that, is the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation.  Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved.”

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be “fully competent to undertake any duties, if they would be so competent on reasonable accommodation.”

Consideration of the Facts

From my assessment of the submissions of both sides and the evidence presented at the hearing of this complaint, these are the facts that led to the respondent deciding not to offer the complainant an alternative role:

1.      The complainant has a disability, with significantly impaired vision arising from the accident in the workplace in June 2017.

2.      Before his accident, as a holder of a Group 2 driving licence, he was eligible to drive a truck.  His job as a truck driver became closed to him because of the accident.

3.      The complainant underwent significant surgery and rehabilitation and, by 2021, his eyesight had recovered to a certain extent.  He tried out the possibility that a job in the office of the respondent’s business might be suitable.  After two weeks however, he found that his eyesight had not recovered enough to do a clerical role and he remained out sick.

4.      A personal injury claim was settled in February 2022.

5.      In November 2022, the complainant was passed as fit for a Group 1 licence, meaning that he is eligible to drive a car, a motorcycle, certain vans, small buses and tractors.  He enquired about returning to work, and he argued that he could operate some of the equipment used in the yard of the respondent’s business.

6.      Following extensive medical assessments by the respondent’s occupational consultants, the respondent decided that the complainant’s disability made him unsuitable to operate the machinery in the yard.

7.      No evidence was submitted by the complainant’s consultants that he was capable of operating hazardous machinery.  In general, his consultants stated that he was ready to return to work, with no reference to the job that he was employed to do.

8.      The complainant suggested that, as an alternative to a job operating machinery, he could do a sales job or that he could manage the paperwork associated with truck maintenance.

9.      In 2021, when the trial period in the office hadn’t worked out, the complainant was replaced by a new person.

10.    In February 2024, the respondent concluded that there was no suitable role currently available for the complainant and that the company wasn’t in a position to create a new role for him.  For this reason, his employment was terminated.

The wording of s.16(3)(b) is clear:

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(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.

My task now is to consider if the creation of a role in the office for the complainant would have imposed a disproportionate burden on the respondent, and if it was unlawful not to offer him a job but instead, to terminate his employment. 

Findings

The responsibility of an employer to provide reasonable accommodation for an employee who becomes disabled during their working life is determined by the circumstances of each individual case.  The “disproportionate burden” criterion will mean one thing to an employer with 30 employees and will impose a different burden on a multi-national organisation with hundreds of employees.  In some instances, an employee may be supported to continue in the job they were employed to do, and in others, it may be possible to move them to a different job.  While taking account of the legal precedents presented by both sides, I must consider the complainant’s case, based on the unique circumstances faced by him and his employer.     

In his evidence, the complainant put forward an argument that, in 2005, he was employed as a general operative, working on the machines used yard, and that he could return to that job in November 2022, when he was passed as fit to drive a car.  The complainant suggested that he could return to his original job, before he was eligible to drive a truck on the public road and that he could confine himself to working on the machinery used in yard.

The licensing of the operation of the hazardous machinery used in the respondent’s business is, as described by Mr Gleeson, “a grey area.”  Having heard the evidence of the witnesses, it seems to me that the NDLS licensing regime applies to the driving of vehicles on the public road, and much of the equipment in the yard may be legally operated by a person who has no driving licence of any kind.  The HSA has published codes of practice for operating certain equipment such as fork trucks, loaders and teleporters and the eligibility for operating such vehicles is generally regulated by certified training, refresher training and “tickets.”

The complainant uses a sophisticated contact lens system in one eye and the advice provided by the respondent’s occupational consultants is that his eyesight was not adequate for him to operate the machinery used in the yard.  I note from the reports produced by his own opticians and surgeons that none referred to the job of operating hazardous machinery to lift and pack sand and cement onto trucks.  The complainant did not say that he showed his consultants the photos of the equipment in use in the yard which was sent to the respondent’s doctors.  He presented no evidence that he brought the respondent’s reports to his own consultants for them to be contradicted.

I am satisfied that the decision of the respondent not to permit the complainant to return to a job operating the machinery in the yard was consistent with the medical advice received and was not unlawful.

The second job that the complainant suggested he could do was that of a salesman, driving his own car on his own insurance.  A person who held this job for several years retired in 2021 and was not replaced.  The evidence of the respondent was that, when the salesman retired, they found that sales were not adversely affected, because the construction business was thriving and there was a demand for their product.  No reasonable employer in similar circumstances would create a job that was not required and I find that the respondent’s decision not to employ the complainant as a salesman was not unlawful.

The third option that the complainant suggested was a clerical role in the office.  In his evidence, he said that a person was employed in the office in 2021 to replace the salesman who had retired.

Having considered his evidence, I’m not entirely convinced that the complainant wanted to work in the office.  I have reached this conclusion because he expressed this view to Dr McDermott in March 2023, when he argued that his driving licence made him suitable for operating the machines in the yard.  When he tried out the office job in 2021, he found that his eyesight wasn’t sufficiently recovered to enable him to continue.  When his sight improved during 2022, he didn’t do anything, from the perspective of learning or development to improve his qualifications to work in a clerical setting.  From November 2022, when he said that he was ready to return to work, until his dismissal in early 2024, he had 12 months during which he could have done a course or obtained assistance from Vision Ireland to support his transfer to an office-based job.  I find that the complainant’s failure to take some initiative to support his case that he should be accommodated with an office job is detrimental to his case that he was entitled to be offered such a role.

The complainant’s lack of interest in or commitment to an office job is further indicated by his submission in June 2024, five months after his dismissal, of a report from Mr Cian Gildea, in the Royal Victoria Eye and Ear Hospital in Dublin who stated that the complainant had taken an Esterman test and that he fulfilled the NDLS’s medical criteria for fitness to drive.  While this was a very positive development, I find it strange that the complainant took no action to improve his capability to work in an office such as taking a course in Microsoft Word or Excel, or on the documents related to truck maintenance.  It is interesting and very positive to hear that, after his dismissal, he found a job, not in an office, but as a driver of a school bus, a job he said he found rewarding, both financially and from the perspective of job satisfaction.

In an organisation employing large numbers with high turnover, it may be feasible to appoint a person who has acquired a disability to a different role, even where no vacancy exists, in anticipation that a vacancy will eventually emerge.  Some organisations have the resources to accommodate additional capacity on a temporary basis.  I am satisfied however, that the obligations of an employer which are contained at s.16(3) and (4) of the Act do not extend to creating a new role for a disabled employee and any such transfer will be contingent on the individual concerned having the capability and experience to do an alternative job.  

Conclusion

I have considered the evidence submitted by the complainant and the witnesses for the respondent, and I have taken account of the important findings of the Supreme Court in Nano Nagle, in the judgement of the CJEU in the HR Rail Case and in the various decisions of the Labour Court submitted by Mr O’Donnell on behalf the complainant. 

From the judgement of Mr Justice Charleton in the Nano Nagle appeal to the Supreme Court, I am satisfied that s.16 of the Act places no obligation on an employer to find an alternative job for an employee who, because of their disability is unable to continue in or to return to the role for which they were recruited.  On the other hand, considering the CJEU judgement in the Nagreta case (see page 15), which was referred to by Mr Deegan, depending on the circumstances of the enterprise, it may be reasonable and possible to find a role for such an employee, as long as the employee is capable and has the experience necessary to do the job and to be productive in a reasonable timeframe.

Taking account of the circumstances of the complainant, in the context of the enterprise where he worked, it is my view that his appointment to a job in the office, where no vacancy existed, would have placed a burden on the business that is not envisaged by the provisions of s.16 of the Act.  I have concluded therefore, that the decision to not allow him to return to work in an office job was not unlawful.

Based on the conclusions set out above, I am satisfied that the respondent has rebutted any inference of discrimination in relation to the application of s.16 of the Employment Equality Acts 1998 – 2025 and I decide therefore, that the complainant’s case is not well founded.

Reasonable accommodation, discrimination, alternative work