A Complainant (represented by Eamonn Fleming & Co, Solicitors) v Bus Éireann
1. DISPUTE
1.1 This dispute concerns a claim by a complainant that he was discriminated against by Bus Éireann on the ground of disability contrary to the provisions of the Employment Equality Act, 1998 when he was refused a position as a seasonal bus driver on medical grounds. As the investigation involved confidential medical information relating to the complainant, his identity has been withheld in this decision.
1.2 On behalf of the complainant, Eamonn Fleming & Co, Solicitors referred a claim to the Director of Equality Investigations on 18 May 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 22 May 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a joint hearing was held on 26 April 2002. Subsequent correspondence with the parties concluded on 16 July 2002.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant had been employed for some fifteen years by the respondent to drive a school bus in County Cork. His working week comprised approximately thirty hours, and his employment lasted for the academic year, that is from September each year to June the next year. In August 1999, the complainant applied for a position as a seasonal bus driver in Cork city. The position, which was for the months of July and August, involved providing cover for drivers on scheduled routes who were absent on holidays, and the working hours were thirty-nine hours per week with the possibility of overtime. The position would involve a substantial increase in salary for the complainant.
2.2 The complainant was successful in his application, pending the result of a medical examination. The medical, conducted by the respondent's Chief Medical Officer (CMO), detected that the complainant suffered from right bundle branch block. Bundle branch block is an abnormality of the conduction of electrical impulses through the ventricles of the heart, resulting in delayed depolarisation of the ventricular muscles. Abnormalities of the right and left bundle branches cause delayed contraction of the right and left ventricles respectively. The complainant was deemed to be unsuitable for the position of seasonal bus driver because of the medical diagnosis. He referred a claim to the Director of Equality Investigations, but the matter was outside the scope of the 1998 Act as it had occurred prior to the commencement of the Act on 18 October 1999.
2.3 In March 2001, the complainant again applied for a position as a seasonal bus driver, and he received a letter from the respondent's CMO indicating that having reviewed the notes she was unable to revise the decision made. That refusal was the subject matter of this particular complaint.
2.4 The complainant had been referred by his GP to a consultant physician in a public hospital in August 1999, and he underwent two ECGs and a stress test. The consultant's report said that, having discussed the results with a consultant cardiologist in Cork University Hospital, they had agreed that "this is probably a normal variant with intermittent bundle branch block and that this shouldn't in any way prevent him from driving a bus or a school bus".
2.5 In November 1999, the complainant was seen by a consultant cardiologist in private practice, who concluded that the right bundle branch block was probably congenital and indicated that up to 10% of the population would have these findings. The complainant was said to be asymptomatic with an excellent prognosis. The report indicated that if the complainant became symptomatic, that is if he developed syncope (fainting) or light-headedness, the problem would be managed by permanent installation of a pacemaker, but concluded that he did not require this at present.
2.6 The complainant pointed out that he was retained by his employer in his position as a school bus driver, and that he continued to be responsible for the transport of up to seventy schoolchildren to and from school each day. As a consequence of the finding of right bundle branch block, the complainant has had to undergo a medical examination each year, and he has been passed fit to continue in his present position on each occasion. He said that there was no evidence whatever that he was incapable of undertaking the duties attached to the position of seasonal bus driver, and claimed that the respondent's refusal to employ him in that role constituted discrimination on the ground of disability.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent asserted, in the first instance, that the complainant's referral of his claim to the Director was a spurious attempt to circumvent the terms of the original determination that his first claim was outside the scope of the Act. It said that the position which he alleged he was prevented from obtaining was the same position which was the subject of the first claim. Further, the respondent said that the alleged discrimination arose out of a medical examination which took place in the summer of 1999. That medical assessment was intended to be permanent and the respondent did not intend to have the complainant re-examined. Accordingly, it claimed the alleged act of discrimination arose prior to the commencement date of the 1998 Act and was statute barred in any event.
3.2 The respondent also stated that the reason the complainant was unsuccessful in his application for the position of seasonal bus driver was because of the determination of the respondent's then-CMO. The respondent stressed that the CMO was independent in the exercise of her duties and, when she had found the complainant medically unfit for the position applied for, the respondent would not "second guess" her views.
3.3 The respondent pointed out that the CMO had been in complete agreement with the complainant's medical consultants as to the nature of the heart disturbance suffered by the complainant, but that the CMO had been adamant that such a condition represented an inherent risk of sudden incapacity during the course of bus driving.
3.4 The respondent's current CMO distinguished between the complainant's position as a school bus driver from the position sought as he was of the view that seasonal bus driving was extremely demanding. The seasonal job involved replacing a scheduled driver, shift work, city driving and tight scheduling. The school bus job was less physiologically demanding, and was more leisurely. The CMO felt that the more stressful seasonal job may impact more on the complainant's condition. The respondent said that it was the policy of the CMO to err on the side of caution in the interest of public and road safety and that this was the view of the respondent itself.
3.5 In support of its stance, the respondent referred to a recommendation of the Medical Commission on Accident Prevention, a United Kingdom based body, which said in 1991 that "A person should be advised not to apply for or to hold a licence to drive a large goods or passenger carrying vehicle in the following circumstances:
...If the ECG is normal apart from the ischaematic abnormalities mentioned above, particularly if it shows left bundle branch block. Right bundle branch block should be regarded in the same light if it occurs after a previously recorded normal ECG or is detected for the first time after the age of 40, or when associated with chest pain, diabetes or hypertension".
The respondent pointed out that the complainant's condition was detected for the first time after the age of 40, and that he therefore fell within the category of persons who should be advised not drive a passenger carrying vehicle.
4. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
4.2 The complainant alleged that the respondent discriminated against him on the grounds of disability contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include disability. Section 8 provides that
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
4.3 Disability is defined in the Act as including the malfunction, malformation or disfigurement of a part of a person's body...and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person. I am satisfied that the complainant's condition constitutes a disability for the purposes of the Act.
"Attempt to subvert" the original determination
4.4 The initial matter to be considered is the respondent's argument that complainant's referral of this claim was an attempt to subvert the 1999 determination that his initial claim was outside the scope of the Act. The respondent pointed out that the position being sought by the complainant is the same position which was the subject of his initial claim, and asserted that the medical examination in 1999 was intended to be permanent.
4.5 I must find that this argument is unsustainable. The position is of course the same position, but the complainant re-applied for it and was refused in March 2000. This was a new action, capable of being considered to be an act of discriminatory treatment in terms of the 1998 Act. The respondent's intention that the 1999 medical examination should be permanent is not relevant. Since the Act came into effect on 18 October 1999, an action prior to that date could not constitute discrimination on the disability ground, or on any of the other new grounds. The commencement of the Act meant that actions, previously not discriminatory, now fell to be considered in the context of the new legal framework. To accept the contrary would imply, for example, that a woman could not have challenged her pay after the commencement of the Anti-Discrimination (Pay), 1974 on the basis that her pay had been determined prior to the Act and there had been no intention to review it.
The substantive issue
4.6 The facts in this matter are not in dispute. The complainant was deemed by the respondent to be ineligible for a position as a seasonal bus driver because of his medical condition. The respondent argued that this condition makes his employment in such a position a potential danger. Section 16 (1) of the Act provides Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, or to provide training or experience to an individual in relation to a position, it 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.
4.7 In determining the matter of the complainant's competency, regard must also be had to the provisions of section 16 (3) of the Act, which states
(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer. It will be seen that there are two important aspects to a claim of employment discrimination on the disability ground. In the first place, an employer is not required to employ any person who is not competent to carry out the duties of the position. However, the employer is under an obligation to do all that is reasonable to accommodate such a person's needs by providing special treatment or facilities unless the provision would give rise to a cost, other than a nominal cost.
The complainant's competence
4.8 The complainant pointed out that he continued to be employed by the respondent as a school bus driver, responsible for the daily transport of up to seventy schoolchildren between September and June each year. He asserted that the position was a highly responsible one, and that it involved a significant level of stress. He described the school bus as an "old banger", and said that driving on country roads required constant vigilance. Since the diagnosis of his medical condition, he has been obliged to undergo a medical examination each year. On each occasion he has been passed fit to continue in his present position.
4.9 It was the view of the respondent's CMO that the position held by the complainant was significantly less stressful that the seasonal position would be. In the CMO's opinion, driving in a city was of itself more stressful and would have imposed greater physiological demands on the complainant. He agreed that he had based this opinion on his own knowledge and understanding of the two roles and was not in a position to produce any objective studies or other data demonstrating the relative stress levels of the roles. The CMO was also unable to provide details of any risk assessment undertaken into a condition such as the complainant's in the context of driving a public service vehicle.
4.10 The only material produced by the respondent in support of its position was the report of the UK Medical Commission on Accident Prevention (referred to in 3.5 above), which recommended that persons with the complainant's condition should be advised not to apply for or to hold a licence to drive a passenger carrying vehicle. The status of these recommendations in the United Kingdom is unclear, but they obviously do not have any legal status in this jurisdiction.
4.11 Standards of physical and mental fitness for driver licensing purposes in this jurisdiction are provided for by the Road Traffic (Licensing of Drivers) Regulations, 1999, which give effect to EU Directive 91/439/EEC on driving licences. The Regulations stipulate standards for drivers of vehicles categorised as Group 1 (ie motorcycles, cars and tractors) and for those categorised as Group 2 (ie trucks and buses). The Regulations do not distinguish between school buses and scheduled city buses.
4.12 In relation to cardiovascular diseases generally, the Regulations provide that fitness to drive Group 1 vehicles shall not be certified if the applicant suffers from seriousrrhythmia (irregular heart-beat) resulting in loss of consciousness. In this connection, the Regulations state that persons with ventricular tachyarrythmias (a disorder affecting the regularity of the heart-beat) treated by an implantable cardioverterdefibrillator (ICD) may have an ongoing risk of sudden incapacitation while driving, and specify that persons with certain classes of ICD shall not be certified as being fit to drive. Persons with other categories of ICD, persons wearing a pacemaker and persons who have suffered myocardial infarction may be certified as fit to drive subject to regular medical review. Regarding fitness to drive Group 2 vehicles, the Regulations state that "the medical examination shall take due account of the additional risks and dangers involved in the driving of such vehicles".
4.13 It will be noted that there is no specific exclusion of an applicant with the complainant's condition, although the Regulations obviously envisage that driving Group 2 vehicles involves risks and dangers additional to those involved in driving Group 1 vehicles. It is apparent therefore that there is no blanket exclusion of persons such as the complainant, but it would appear logical that such persons should be subject to regular medical review because of the "additional risks and dangers involved".
4.14 This is, in effect, the procedure that the respondent has operated since the discovery of the complainant's medical condition. He is obliged to undergo a medical examination each year, and to date has been found fit to continue to carry out his job of driving a school bus. Given the nature and responsibility attaching to this job, this would appear to constitute good practice on the part of the respondent.
4.15 However, the respondent has failed to apply the same logic to the job for which the complainant applied, on the grounds that the city job was more stressful than the school bus job. The respondent was unable to provide any evidence of this, and confirmed that the CMO had not carried out any independent and objective study of the matter. It is clear that the complainant's medical advisers were of a different opinion regarding the relative risks involved.
4.16 I note that the respondent does not require its bus drivers generally to undergo annual medical reviews, unless a medical condition is discovered in circumstances similar to the complainant's. The result of this is that a person driving a city bus for a number of years, who does not apply for another position and therefore does not undergo another medical examination, may have developed a condition such as the complainant's unknown to the respondent.
4.17 It appears to me that the respondent's position in relation to this issue is inconsistent. It has decided that the complainant may not drive a city bus because of the inherent risks attaching to his condition, although there is a dispute among the medical advisers as to the nature of those risks and the respondent is unable to produce objective evidence of its opinion. At the same time, however, it has not introduced any procedures to monitor the potential development of such a condition among existing city bus drivers. I am unable to understand the lack of such procedures, if the respondent genuinely feels that the condition is dangerous in the context of city bus driving.
Reasonable accommodation
4.18 The question of an employer's obligations in relation to reasonable accommodation of an employee with a disability was considered by the Labour Court in A Computer Component Company v A Worker (EED013), where the complainant alleged unfair dismissal under section 77 of the 1998 Act, on the ground of disability. The Court said
"The respondent terminated the complainant's employment because she suffered from epilepsy. This, prima facie, constituted an act of discrimination on the ground of disability. The respondent can only be relieved of liability of it can be shown that, by reason of her disability, the complainant was not fully competent and fully capable of performing the duties of her employment, having regard to the conditions under which those duties were to be performed and could not have had her needs reasonably accommodated...If the respondent did conclude that the complainant lacked full capacity to safely undertake the duties of her employment, it appeared to have done so precipitously...The respondent did not consider undertaking any form of safety assessment which could have identified the extent, if any, to which the working environment presented a danger to the complainant, and how any such danger could be ameliorated...On the evidence, the Court does not accept that the respondent could reasonably and objectively have come to the conclusion that the complainant was not fully competent or capable of performing the duties of her
employment. Even if the respondent did reach such a conclusion, it is abundantly clear that it did not give the slightest consideration to providing the complainant with reasonable special facilities which would accommodate her needs and so overcome any difficulty which she or the respondent might otherwise experience. In all of these circumstances, the Court does not accept that the respondent can avail of the provisions of section 16 (1) so as to avoid liability under the Act."
4.19 I am satisfied that the respondent in this claim did not give any consideration to its obligations under section 16 (3) of the Act. On the contrary, it decided that the complainant's condition constituted an absolute bar to him being considered for the position. As has been stated, there are contrary medical opinions on the matter. However, it is not within my competence to decide which is the correct medical opinion, so I do not propose to order that the complainant be appointed to the disputed position. I am satisfied that this is a claim where a award of monetary compensation is the appropriate form of redress.
5. DECISION
5.1 Based on the foregoing, I find that Bus Éireann discriminated against the complainant on the ground of disability, contrary to the provisions of the Employment Equality Act, 1998, when he was refused a position as a seasonal bus driver.
5.2 I order that
(i) the respondent pay a sum of €6,000 to the complainant in compensation for the effects of the discrimination;
(ii) the respondent develop objective and verifiable criteria for determining the relevance of particular medical conditions to employment in its service;
(iii) the respondent develop policies to meet its obligations to provide reasonable accommodation to persons with disabilities; and
(iv) the respondent re-consider the complainant's application for the position of seasonal bus driver in the light of the outcome of these developments.
_____________________
Anne-Marie Lynch
Equality Officer
4 February 2003
DEC-E2003-004