Bowes(Represented by SIPTU) V Southern Regional Fisheries Board (Represented by IBEC)
1. DISPUTE
1.1 This dispute concerns a claim by Mr. Michael Bowes who was employed by the Southern Regional Fisheries Board that he was discriminated against in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Sections 8 and 16 of that Act when the respondent failed to install hand controls to a Fishery Protection vehicle which would have allowed him to carry out the duties of a Fishery Officer.
2. BACKGROUND
2.1 The complainant was employed as a Fishery Officer with the respondent organisation. In 1996 he was diagnosed with Multiple Sclerosis. One of the implications of this illness was that restrictions were imposed on his driving licence in 2001 requiring him to only drive vehicles fitted with hand controls. The complainant informed the respondent and asked that hand controls be fitted to the respondent's vehicles. The request was not granted as the respondent argued that this issue became entwined in a dispute on the introduction of logoed vehicles. It is the complainant's contention that he was discriminated against on the grounds of his disability.
2.2 Consequently the complainant referred a claim to the Director of Equality Investigations on 10th October, 2002 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 21st November, 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 11th August, 2003. Additional information was received from both parties and the final correspondence was received on 13th February, 2004. The complainant asked to be named in the Decision.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 According to the complainant he suffers from the relapse remitting form of multiple sclerosis and he has been discriminated against by the respondent on account of his disability for a period of 18 months. The complainant alleges that the discrimination consisted of a refusal by the respondent to install a set of hand controls into a staff vehicle which would have allowed him to continue to undertake meaningful work. The complainant states that the refusal to engage in a proper debate about his request and the subsequent refusal to install the hand controls rendered his day to day life at work extremely stressful, in direct contradiction to the advice given to the respondent by his doctors and the respondent's own doctor. It is the complainant's submission that by the respondent's refusal to engage in debate about his request and the refusal to install hand controls in a staff vehicle it was instrumental in increasing his stress levels to a pitch where he was admitted to hospital, his condition confined him to a wheelchair and he experienced life threatening symptoms.
3.2 The complainant says that by pursuing this course of action the respondent in the persons of the Chief Executive Officer and the Human Resources Manager were actively involved in a policy of constructive dismissal especially as the Chief Executive Officer had personal knowledge of multiple sclerosis, its symptoms and its consequences. It is the complainant's contention that the Chief Executive Officer would have known that he would eventually have no option but to resign in order to reduce his stress levels. The complainant says that it was unknown to him at the time that the respondent's own doctor had on 4th September, 2002 recommended hand controls to be fitted to staff vehicles. According to the complainant he only learned of this in December, 2002 and this information had been withheld from him by the Chief Executive Officer and the Human Resources Director which is in conflict with the respondent's Equal Opportunities Policy/Procedures & Respect & Dignity at Work Policy and Grievance Procedures.
4. SUMMARY OF RESPONDENT'S SUBMISSION
4.1 The respondent has its head office in Clonmel and is responsible for the conservation, protection, management, development and improvement of inland fisheries and sea angling in the southern part of the country. It employs a staff of 32 and most of these are fisheries protection staff. The complainant was employed as a Fishery Officer by the respondent organisation. The respondent states that a Fishery Officer is primarily concerned with the implementation and enforcement of the provisions of the Fisheries Act e.g. checking licences of those fishing, checking for nets across rivers, etc., the Water Pollution Acts and other relevant statutory provisions. According to the respondent the complainant took early retirement on 10th January, 2003. The respondent denies the allegation made by the complainant that he suffered discriminatory treatment in relation to his conditions of employment under the Employment Equality Act, 1998. Rather the respondent contends that the complainant was treated more favourably because of his disability as he was no longer required to drive, do sea patrolling duties and river patrolling had to be done if he felt able to do it on the day.
4.2 The respondent notes that on 11th April, 1996 the complainant was diagnosed with MS and, as a result of this diagnosis, he requested a transfer to the respondent's Fermoy depot so that he could be near home. The respondent states that the complainant was transferred within a couple of weeks to Fermoy. According to the respondent the complainant had a high level of absenteeism for a number of years as follows:
| Year | Number of Days Absence |
|---|---|
| 1997 | 81 |
| 1998 | 95 |
| 1999 | 6 |
| 2000 | 9 |
| 2001 | 196 |
| 2002 | 64(up to 30th September) |
The respondent states that, despite this level of sick leave, the complainant was notdisciplined and there were no discussions with him about his level of absenteeism.
4.3 In relation to the respondent's alleged failure to adapt one of its vehicles for the complainant resulting in him having less favourable conditions of employment the respondent notes that it has three vehicles available to seven staff at the level of the complainant in the district. The complainant was driving one of the respondent's vehicles until the end of 2000. On 2nd January, 2001 the complainant was absent from work and did not return for over 5 months. On his return he informed the respondent that his driving licence had been changed and that he could not drive any of the respondent's vehicles unless hand controls were put into them. The respondent had the complainant examined by its own medical doctor on 4th September, 2001 and in his medical report he set out a number of restrictions on what the complainant could do as follows:
1. If driving, the complainant should have access to a specially adapted car.
2. The complainant should avoid successive shift work without breaks.
3. The complainant must take special care if and when he is walking over rough terrain.
4. The complainant is not suitable for sea patrolling duties but river patrolling could be considered depending on his condition on the day.
The respondent states that this created a difficulty for it as one of the principal elements of a Fishery Officer job involves river and sea patrolling. Although it is a requirement of a Fishery Officer to drive, do sea and river patrolling the respondent says that it made an exception in the complainant's case because of his disability. According to the respondent the complainant had not been driving any of its vehicles since his return to work in mid-2001 and did not do so again although he remained in the respondent's employment until January, 2003.
4.4 Section 16(1) of the Employment Equality Act, 1998 states that an employer is not obliged to retain an individual in employment unless that person is fully capable of undertaking the duties attaching to that post. The respondent states that the complainant was not fully capable of performing the job of a Fishery Officer and this is obvious from the report of the respondent's doctor issued in September, 2001. Under Section 16(3) of the 1998 Act an employer is obliged to provide special treatment or facilities (subject to these not involving anything more than a nominal cost) to ensure that an employee is fully capable of performing a job. The respondent contends that this section of the Act is not relevant to this case as the respondent was prepared to overlook the fact that the complainant could not do the full job of Fishery Officer and the complainant did not lose out in any way as a result of the respondent's action. The respondent says that the introduction of hand controls into one of its vehicles may have allowed the complainant to drive (which he was reluctant to do as the vehicles contain a logo) but this would not have overcome the fact that he could no longer perform other essential functions of the job. It is the respondent's submission that it never terminated the complainant's employment although he was no longer capable of performing the job of Fishery Officer. Under the Employment Equality Act, 1998 the respondent says that it could legitimately have dismissed the complainant. The respondent says that it was prepared to continue to employ the complainant despite the serious restrictions on what he could do in his role of Fishery Officer.
4.5 The respondent rejects that the complainant was discriminated against in relation to his conditions of employment because of his disability. According to the respondent the complainant was involved in a dispute with the respondent and clearly indicated on a number of occasions that he did not want to drive a vehicle with a logo. He is now contending that not adapting a vehicle is discrimination against him. The respondent submits that these two positions are clearly inconsistent. The respondent notes that the complainant had stated that he did not want to drive or be a passenger in a vehicle with a logo at any time. However the fact that he was no longer required to drive had no financial implications for him. It is the respondent's submission that it has, at all times, been sensitive to the complainant's condition and it overlooked his excessive levels of absenteeism over the years. Even when the respondent received the medical report from its own doctor, some 15 months before the complainant resigned, which clearly stated that the complainant was not fully capable of performing the job of Fishery Officer no effort was made to terminate his employment. It is the respondent's contention that the complainant has not established a prima facie case of discrimination on the grounds of disability in this
case. Futhermore the respondent states that he has not shown how he has been treated less favourably because of his disability. The respondent therefore requests the Equality Officer to reject this claim.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent discriminated against the complainant in terms of Section 6(1) and Section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Sections 8 and 16 of that Act by allegedly treating him less favourably on the grounds of his disability. 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.
5.2 The complainant suffered from the relapse remitting form of multiple sclerosis and it was accepted that he suffered from a disability as defined by Section 2 of the Employment Equality Act, 1998.
5.3 According to the complainant he drove a logoed vehicle up to the end of 2000 after which he was absent from work on sick leave for over 5 months. At the hearing of this claim the complainant submitted two letters from members of the medical profession in which they both recommended that he be provided with a vehicle fitted with hand controls. These letters were dated 17th January, 2000 and 18th May, 2001. According to the complainant he informed management of the respondent organisation of his requirement to have hand controls in the respondent vehicles. It should be noted that the request was never made in writing and the dates on which he informed management of the requirement as set out in his submission are as follows:
26th June, 2001 - Complainant told Inspector A that he needed hand controls.
29th June, 2001 - Complainant was told by Inspector A that management had decided that he was not to drive the vehicles anymore but that he was to be a passenger in the vehicle.
21st Aug. 2001 - Met with the CEO and Inspector A and informed them that his driving licence had been changed so he needed the vehicles to be fitted with hand controls. (It should be noted that this was the date given by the complainant at the hearing as the date when he first requested hand controls). Asked by management to attend for a medical.
4th Oct. 2001 - Asked Inspector B about getting hand controls fitted to respondent vehicles and was told that he would consult with management.
24th Oct. 2001 - Again spoke to Inspector B who said that he would have to talk with management.
30th Oct. 2001 - Spoke with CEO and Inspector B about the issue of hand controls and the CEO said that he would examine it.
All respondent vehicles had logos placed on them in January, 2002. The complainant states that he, among others, had difficulty driving logoed vehicles in certain areas. According to the complainant he expressed his concern which was compounded by his inability to drive vehicles not fitted with hand controls. The complainant states that he raised his concerns at meetings with management on 25th January, 29th January, 8th February, 30th April, 3rd July and 17th July, 2002 and he mentioned the issue of hand controls at some of these meetings. At a meeting between the complainant and the CEO on 2nd August, 2002 the complainant states that he was told that he would not be provided with hand controls in a respondent vehicle on the basis that it would discriminate against other employees.
5.4 In its submission the respondent rejects the complainant's allegation. It says that when the complainant returned to work after being absent on sick leave for over five months he informed management that his driving licence had been changed and that he could not drive any of the respondent's vehicles unless hand controls were fitted. As a result the respondent had the complainant examined by its own medical doctor on 4th September, 2001 and in his report a number of restrictions were set out on what the complainant could do including access to a specially adapted car if driving. At the hearing of this claim and in follow-up correspondence the respondent states that the first occasion on which the complainant requested hand controls was on 30th October, 2001 the date his driving licence changed to reflect this requirement. In this correspondence the respondent notes that no formal or written requests were made for hand controls and any discussion regarding same was in the context of the complainant's rehabilitation into a team following a long period of absence. Furthermore the respondent denies that it refused to install hand controls to facilitate the complainant but states that the issue of hand controls became entwined in a dispute about driving logoed vehicles. In relation to the dispute regarding the driving of logoed vehicles in certain areas the respondent states that the complainant never made any reference to hand controls during any of the meetings held throughout the duration of this dispute between January and July, 2002. In July, 2002 the respondent says that the complainant again mentioned hand controls but in the context of unmarked vehicles (as opposed to logoed vehicles).
5.5 There is conflict between the parties as to when exactly the complainant sought hand controls and there is the added difficulty that the request was not made in writing. However the complainant's licence changed to require him to drive a vehicle with hand controls on 30th August, 2001. On this basis it is clear that, at least from this date, the respondent was aware of the change in the complainant's licence and his need to have hand controls fitted to respondent vehicles to allow him to drive. The respondent had the complainant examined by its medical doctor on 4th September, 2001 who also held that vehicles had to be specially adapted to facilitate the complainant. It is the respondent's submission that the issue of hand controls became entwined in a dispute about driving logoed vehicles in certain areas. I note that this dispute arose in January, 2002 at least four months after the respondent had been informed by the complainant of his need for hand controls in respondent vehicles. The respondent has argued that discussions regarding hand controls were in the context of the complainant's rehabilitation into a team after his long absence. I note, however, that the complainant was back at work for some months before his driving
licence was changed.
5.6 Section 16 of the Employment Equality Act, 1998 provides as follows:
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individualin 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.
(3) (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 is accepted that the complainant was unable to perform all of the duties associated with the job of Fisheries Officer. On this basis the respondent has argued that he was treated more favourably because of his disability. The respondent has also argued that Section 16(3) of the 1998 Act is not relevant to this case as it (the respondent) had overlooked the fact that the complainant was unable to do the full range of duties of a Fishery Officer and he did not lose out in any way as a result.
5.7 I am satisfied that under Section 16(1) of the Employment Equality Act, 1998 an employer is not required to retain an employee who is no longer fully capable of performing the duties attached to the position. In this case however there is serious conflict between the parties as to the extent of the complainant's ability to carry out the various tasks associated with the job of Fishery Officer. I note that the complainant's direct boss has disputed the complainant's limitations in relation to his job as set out by the respondent in the course of this investigation. The fact is that, despite its argument on his limitations to perform the job of Fishery Officer, the respondent did retain the complainant in employment and as such is subject to the requirements of Section 16(3) of the 1998 Act. One of the duties associated with the position was the need to drive and the complainant could have fulfilled this duty had hand controls been fitted to the respondent's vehicle. The respondent has argued that it did not refuse to fit hand controls to its vehicle but I note that it did fail to do so. It is also noteworthy that the respondent failed to engage in any real dialogue with the complainant in relation to this requirement. I note that the Labour Court in the case of A Health and Fitness Club v A Worker1 set out the basic process which employers must, at a minimum, observe in order to provide reasonable accommodation and it specificially includes constructive dialogue with the worker concerned. The Act provides, as a defence, that an employer does not have to provide special treatment or facilities if the provision of such would give rise to higher than a nominal cost. I note that the respondent could have fitted hand controls into a vehicle at a cost of £400 and this vehicle could still be used in the normal way by a person without a disability.
5.8 I am satisfied that the respondent failed to adequately discharge its burden in this claim. It could have fitted hand controls to a vehicle at a nominal cost to be driven by the complainant in the course of his work. By so doing the complainant would have had less concerns about his health and safety. At the hearing of this claim the complainant stated that his inability to drive was stressful to him as he felt more dependent on his colleagues than was necessary. The complainant also noted that stress aggravated his condition. The issue of driving logoed vehicles in certain areas was a separate issue involving a number of staff and addressed in an Industrial Relations forum.
5.9 During the course of this investigation the complainant stated that in January, 2001 when using work vehicles he was not allowed to use his disability parking permit but I note that this matter was resolved between the parties.
5.10 The complainant made reference to having being constructively dismissed. The respondent has denied this allegation. Under the Employment Equality Act, 1998 I have no jurisdiction to investigate claims of constructive dismissal which should be referred to the Labour Court.
6. DECISION
6.1 In view of the foregoing I find that the Southern Regional Fisheries Board did discriminate against Mr. Bowes by failing to provide reasonable accommodation which was available at nominal cost in terms of Section 16 of the Employment Equality Act, 1998.
6.2 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order that the Southern Regional Fisheries Board pay Mr. Bowes the sum of €10,000 by way of compensation for the stress suffered as a result of the discrimination.
__________________
Gerardine Coyle
Equality Officer
17th February, 2004
1Labour Court Determination - EED037 of 18th February, 2003