Mr. C V Iarnód Éireann
1. DISPUTE
1.1 This dispute concerns a claim by a named individual - Mr. C that Iarnród Éireann discriminated against in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when he was not offered the position of gate-keeper in Athlone.
2. BACKGROUND
2.1 The complainant became aware of a vacant position of gate-keeper in Athlone with the respondent organisation. He applied for the position and was called for two medical examinations. According to the complainant when he informed the medical examiner that he had suffered from depression he was deemed unfit for the position. It is the complainant's contention that the respondent discriminated against him on the grounds of disability by not offering him the position. The respondent denies the allegation and says that the position of gate-keeper is safety critical and, on the advice of the Chief Medical Officer, it was decided not to offer the complainant the position.
2.2 Consequently the complainant referred a claim to the Director of Equality Investigations on 30th November, 2001 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 23rd July, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received and a joint hearing took place on 10th October, 2003. Additional information was received from the respondent with the final correspondence received on 13th November, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that he rang the Station Master about a vacancy of gate-keeper at the respondent's Athlone Station and he was invited to attend for interview which took place in February, 2001. At the end of the interview he was told that the job for a period of 3 to 6 months. The complainant was unaware that the job was of a temporary nature and indicated that he was looking for a permanent job. The Station Master said that she would get back to the complainant but failed to do so and six weeks later the complainant rang the Station Master to be told that there was a post of a relief gate-keeper available and a medical would be arranged for him.
3.2 The complainant attended for a medical on 14th May, 2001 and during this medical he had his ear syringed and was given an eye test. Following the eye test the complainant was advised to get glasses which he himself did not think he needed and which his own optician did not think he needed. However he did acquire the glasses at his own personal expense. On 30th May, 2001 the complainant attended for another medical and he informed the medical examiner that he had a history of depression. He informed the medical examiner that he had never been admitted to hospital for this condition and was, now, in control of it. The complainant says that the medical examiner told him that this may go against him but that the decision was not hers to make. A few days after this medical appointment the complainant rang the medical centre and he was eventually told that he was unsuccessful in his application. The complainant asked to speak with the Chief Medical Officer but was told that he was unable to take his call.
3.3 It is the complainant's contention that he was discriminated against by the respondent on the grounds of disability. According to the complainant his indication at the medical that he had suffered depression was the reason he was not offered the position of gate-keeper and he considers this totally unfair and feels that his ability to do the job of gate-keeper has been seriously undermined by the respondent. The complainant says that he is quite capable of holding down the job as he is a very responsible person. It is the complainant's submission that there is no question in relation to the safety of the trains, their passengers or people and/or motorists using the crossing. The complainant says that they would not be at risk due to his depression. It is the complainant's contention that this is a cop out by the respondent.
3.4 The complainant says that there is no doubt that a percentage of gate-keepers suffer from some form of depression and he questions how they got their jobs. The complainant notes that he went to great personal expense in getting glasses (which he did not need) and in travelling to Dublin on two occasions for medicals and yet it was his own honesty about his depression which, he argues, militated against him getting the job. In conclusion, therefore, the complainant contends that he was discriminated against by the respondent on the grounds of his disability.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent contends that the complainant's claim is out of time within which to make a complaint under the Employment Equality Act, 1998. In making this argument the respondent notes that the date of the most recent occurrence of a discriminatory act on the referral form was 30th May, 2001 and the form itself was received by the Equality Tribunal on 30th November, 2001.
4.2 Without prejudice to this argument the respondent denies that it discriminated against the complainant in terms of the 1998 Act. According to the respondent the position of gate-keeper is safety critical and, following the advice of the Chief Medical Officer, the respondent states that it would have been unsafe to employ the complainant to the vacant position. The respondent states that it was clear from the notes made available by the Chief Medical Officer that the complainant not only suffered from manic depression but he admitted that he only took medication for his condition "when he felt that there was exacerbation" of his depression. The respondent says that the complainant discontinues taking medication when he feels that his condition has "stabilised".
4.3 The respondent states that this admission caused the Chief Medical Officer and the respondent organisation considerable concern as employing the complainant as a gate-keeper would entail giving him responsibility for hundreds of lives and he would not be able to employ his full faculties as a result of his own untreated condition. According to the respondent it cannot comment on the assertion by the complainant that a percentage of gate-keepers suffered from some form of depression. The respondent says that medical records of individual gate-keepers are confidential and the respondent notes that the complainant does not provide any statistical data to support this assertion. The respondent states that the reference by the complainant in his submission to glasses is not understood as the decision to decline to employ the complainant was not done by reference to his eyesight.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The first issue to address is that of the time limit. The date of the most recent occurrence of the discriminatory act was 30th May, 2001. A claim was referred to the Director of Equality Investigations and was stamped as received on 30th November, 2001. To be within the six months time limit as set out in Section 77(5) of the Employment Equality Act, 1998 this referral should have been received by 29th November, 2001 at the latest. It subsequently transpired that the referral form in this claim had been handed into the office of the Director of Equality Investigations on 29th November, 2001 but was date stamped 30th November, 2001 in error. I am satisfied that the referral of this claim was made before the expiry of the six months time limit and that this claim can validly proceed to investigation and decision.
5.2 The issue for decision in this claim is whether or not the respondent discriminated against the complainant on the grounds of disability in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it did not offer him employment as a gate-keeper. In making my decision in this claim I have taken into account all of the submissions, both written and oral, made to me by the parties.
5.3 The facts of this claim are that the complainant applied for the position of gate-keeper with the respondent organisation. He was successful in his interview and was told that an offer of a gate-keeper position was contingent on his being passed fit in his medical. At the medical examination the complainant informed the medical examiner that he suffered from depression and that he took medication as and when he deemed appropriate. The medical records supplied by the respondent gave more details on the condition including an indication of the number of episodes of depression experienced over the course of a year and the fact that the last episode of depression had occurred the previous January and had last several weeks. It was also noted that the complainant had not been hospitalised as a result of his condition. The respondent confirms that the complainant's medical details were sent to the Chief Medical Officer for assessment and a decision on whether or not the complainant was medically fit for the job of gate-keeper. The Chief Medical Officer deemed the complainant medically unfit for the position.
5.4 The job of a gate-keeper is to operate a gate crossing to allow trains or road traffic through a crossing depending on the designation of the gates. A signalman rings the gate-keeper to notify him of when a train will pass through and then the gate-keeper puts the gate in the appropriate position. At an interview for a gate-keeper position prospective applicants would be told that they would receive appropriate training. Safety is a paramount consideration in the respondent organisation. Operations staff are graded into two groups as follows:
Grade A - All grades where it is a single person's responsibility for the safe running of railway traffic which is not fully compensated by technical means.
A job in Grade A category is a safety critical job where one person is responsible for making a judgement.
Grade B - All grades who have a normal safety risk in which the operational safety would be controlled by group work supervised directly by another skilled person or by
technical equipment that can maintain a sufficiently safety level.
The position of gate-keeper falls into the former category (Group A). The respondent submitted a document entitled "Medical Standards for Operations Railway Staff" and while this document was dated 20th March, 2003 the respondent says that this criteria always applied but was only documented in March, 2003. According to the respondent this document was drawn up in consultation with other medical professionals in the Railway Industry and the criteria set out therein is internationally accepted. In this document it is stated that major neurological and psychiatric disorders, inter alia, are an absolute cause for exclusion from work. Mental disorders included depression and manic-depressive psychosis.
5.5 At the hearing of this claim the Chief Medical Officer noted that the complainant presented as having manic-depressive psychosis and he outlined three aspects to this condition as follows:
(a) Periods of low moods
(b) Periods of elation when a patient loses contact with reality and has a feeling of grandeur and indestructibility. During these periods a patient is unaware that anything is wrong and consequently is not in a position to seek help. Patients tend to be a danger to themselves and others, but mostly themselves. It is a common cause for admission to a psychiatric hospital.
(c) Medication which was prescribed for the complainant acts on his central nervous system and can cause side effects including impairment to vigilance.
In making the decision that the complainant was not medically fit for the position of gate-keeper the Chief Medical Officer stated that he had regard to the nature of the condition (i.e. life long condition) and its likelihood to flare up again.
5.6 The respondent accepted that the complainant's medical condition fell within the definition of Disability under the Employment Equality Act, 1998. However, in relation to Section 16 of the 1998 Act the respondent contended that the complainant was not fully competent and capable of undertaking the job having regard to the conditions under which this job was to be performed. In this instance the respondent submits that the complainant was a danger to himself and others. The respondent also states that no reasonable accommodation could have been made to allow the complainant carry out the job apart from having someone with him at all times but this would not be practicable or affordable.
5.7 The complainant, in his submission, stated that other people suffering from depression were employed by the respondent organisation. However, at the hearing of this claim he indicated that he did not want to elaborate on this allegation. At the hearing he also stated that there were other reasons for the failure on the part of the respondent to offer him a job and again the complainant indicated his unwillingness to elaborate on this allegation. It is not good enough for the complainant to make allegations of this nature and then fail to elaborate on them or produce any evidence, if this is possible, to support his allegations. In relation to these two allegations I am satisfied that the complainant has failed to establish a prima facie claim of discrimination.
5.8 Having considered all the evidence I can only conclude that the reason the complainant was not offered the position of gate-keeper was because of his disability. Because of the high level of safety requirements associated with the job I am satisfied that the respondent could not have offered the position to the complainant. Section 16(3) of the Employment Equality Act, 1998 provides as follows:
"(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 (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."
In the circumstances of this case I am satisfied that the respondent could not have provided special treatment or facilities to enable the complainant to do the job without having to incur a cost other than a nominal cost.
5.9 There are two other issues which warrant mention in this claim as follows:
(a) At the hearing of this claim the complainant expressed his dissatisfaction that his medical records had been passed to the respondent's legal department and he indicated that he had given no authorisation for what he alleged was a breach of confidentiality. In a personal injuries claim in the case of Michael McGrorey v Electricity Supply Board2 I note that the Court held that the "plaintiff who sues for damages for personal injuries by implication necessarily waives the right of privacy, which he would otherwise enjoy in relation to his medical condition."
Having regard to this decision I am satisfied that, by making this complaint, the complainant waived his right to privacy in relation to his medical records and the respondent did not require the complainant's authorisation to pass his medical records to their legal department for the purpose of defending the claim.
(b) During the course of the hearing of this claim the complainant expressed his annoyance at the fact that the decision that he was medically unfit for the position of gate-keeper was made without consultation and that he was not given the courtesy of a letter
informing him of the decision. The fact that the complainant had to establish for himself that he had been deemed unfit to hold the position of gate-keeper on medical grounds was not discriminatory under the 1998 Act. However the respondent should have had the courtesy of informing the complainant in writing of its decision and the reason for the decision.
6. DECISION
6.1 In view of the foregoing I find that Iarnód Éireann did not discriminate against Mr. C on the grounds of his disability in terms of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it refused to offer him the position of gate-keeper.
__________________
Gerardine Coyle
Equality Officer
26th November, 2003
2 Supreme Court delivered by Keane CJ on 24th July, 2003