FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AN EMPLOYER (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Act, 1998 DEC-E-2004-008
BACKGROUND:
2. The respondent referred its case to the Labour Court on the 29th of March, 2004, The following is the Court's determination:
DETERMINATION:
As a preliminary issue, the respondent claimed that the complaint herein was submitted to the Equality Tribunal outside the time limited prescribed by Section 77(5) of Employment Equality Act 1998. This point was not taken before the Equality Officer nor was it included in the ground of appeal notified by the respondent. Having submitted to the jurisdiction of the Equality Officer, and not having raised any issue concerning the time limit at first instance, or its notice of appeal, the respondent cannot be allowed to rely on it in this appeal. Accordingly, the Court determined to proceed to consider the substance of the case.
The Dispute
The Southern Regional Fisheries Board (the respondent) is responsible for the conservation, protection, management, development and improvement of inland fisheries and sea angling in the southern part of the country..The complainant was employed by the respondent as a Fisheries Officer.
In 1996, the complainant was diagnosed as suffering from multiple sclerosis (MS). In 2001, the complainant’s driving licence was restricted so as to confine him to driving vehicles adapted with hand controls. The complainant was required to drive in the course of his employment. He contends that the respondent failed to have hand controls fitted to the vehicle in which he travelled, as a consequence of which he was unable to drive. He claims that this failure constituted discrimination on the disability ground contrary to section 8 of the Employment Equality Act 1998 (the Act).
The dispute was investigated by an Equality Officer of the Equality Tribunal pursuant to section 77 of the Act. The Equality Officer held that the respondent failed to fulfil its duty under section 16(3)(b) of the Act in not doing all that was reasonable to accommodate the needs of the complainant by providing special treatment or facilities which would have resulted in him being fully capable of driving in the course of his employment. The complainant was awarded compensation in the amount of €10,000.
The respondent appealed against that decision to this Court.
Respondent’s Case.
The respondent contends that it never refused to supply hand controls to one of it vehicles to accommodate the needs of the complainant. They claim that a medical report on the complainant’s condition prepared by the respondent’s own Doctor disclosed that his condition restricted the range of duties which he could perform in a number of material respects in addition to his inability to drive. This report, it is claimed, raised questions as to whether the complainant could continue to operate as a Fisheries Officer.
The respondent contend that at all times it sought to accommodate the complainant and accepted the limitations which his disability placed on his capacity to perform the full range of functions which a Fisheries Officer can be expected to perform. The respondent also pointed out that the complainant had long and recurring periods of sick leave arising from his disability which it also accepted.
It is the respondent’s case that the complainant only raised the question of providing hand controls on 30th October, 2001, when he mentioned the matter to the Chief Executive Officer of the respondent. The matter was raised in a casual and informal setting. The complainant had been on sick leave for five months, having suffered two broken ankles. The Chief Executive Officer responded that he wished to see how the complainant reintegrated into the workforce after his prolonged absence before considering the type of facilities or accommodation the complainant required.
The respondent contends that the complainant did not demur from the response of the Chief Executive and did not raise the question of having hand controls fitted again. The complainant took annual leave for the month of December 2001. On 25th January, 2002, the complainant, with others, became involved in a dispute with the respondent concerning the placing of the respondent’s logo on its vehicles. In furtherance of this dispute, the complainant and a number of his colleagues refused to drive official vehicles. Because of this dispute, the question of adapting a vehicle for the complainant’s use did not arise.
The respondent further pointed out that it has 3 vehicles for use amongst 7 staff at any time, and staff cannot claim an entitlement to drive. Driving duties are determined, inter alia, by availability of staff and seniority. The complainant did not suffer loss of earnings or any other disadvantage arising from his inability to drive.
Complainant’s Case.
It is the complainant’s case that he was unable to drive a vehicle without hand controls from 26th June, 2001, onwards. He claims to have informed his manager of the restriction at that time and asked that one of the respondent’s vehicles be modified to meet his needs. The complainant contends that this request was conveyed to the senior management of the respondent but they failed to take any action on foot of his request, and this failure extended over a period of 18 months.
The complainant told the Court that he was examined by the respondent’s own doctor who issued a report confirming that he needed hand controls in order to drive. He contends that the content of this report was not disclosed to him at the time. The complainant contends that he met with the respondent’s Chief Executive Officer on 21st August, 2001, and advised him of the restrictions which had been placed on his driving licence. The only response of the Chief Executive Officer was to refer him for a medical examination.
The complainant contends that as a result of the respondent’s failure to have hand controls fitted to one of the official vehicles he ceased to be a full member of the team in which he worked as a result of which he suffered stress and humiliation. He claims that this stress exacerbated his condition and he was required to use a wheelchair. The complainant further contends that during 2002 he continued to request the respondent to provide hand controls both verbally and through his Solicitor but that this facility was never provided.
The Facts.
There was a significant degree of conflict between the parties on material factual issues arising in this case. Having regard to the submissions of the parties, and having considered all of the evidence adduced, the Court is satisfied that the salient facts are as follows:
- The complainant was first diagnosed as suffering from MS in 1996. At that time he was based in Carrick-on Suir. He sought and was granted a transfer to the Fermoy area so as to reduce the travelling distance between his home and his place of work. At that time the complainant, at his own request, was relieved of liability to undertake work at sea because of his disability.
- The nature of the complainant’s condition was such that he experienced long periods of remission particularly where he avoided stress. He did, however, suffer periods of relapse which caused him to take significant periods of sick leave. This was never raised as an issue by the respondent.
- On or about 2nd January, 2001, the complainant suffered two broken ankles and it appears that he incurred this injury because of his disability. He was on sick leave until 28th June of the same year when he returned to work. On his return to work, the complainant spoke to his supervising inspector about his disability and asked that the respondent consider having one of the official jeeps fitted with hand controls. Two days later the inspector reverted to the complainant and advised him that he should not worry about driving and that he could travel in the jeep as a passenger. The complainant accepted this advice without demur.
- The complainant worked for three weeks after his return from sick leave and then took annual leave. He returned to work on 17th August, 2001. At that time the complainant had been medically certified as disabled for the purpose of the Disabled Drivers and Disabled Passengers (Tax concessions) Regulations 1993. The complainant’s recollection is that he met with the Chief Executive of the respondent on 21st August, 2001, and that in the course of the meeting he again asked if hand controls could be fitted to the vehicle in which he travelled. The Chief Executive had no recollection of having met with the complainant on that date.
It is not necessary to resolve this difference of recollection since it is clear that about this time the respondent arranged for the complainant to be examined by its own doctor. That examination was conducted on 4th September and the Doctor’s report was submitted to the respondent on 27th September. The Court accepts that the Chief Executive Officer of the respondent spoke to the Doctor and asked that he pass the complainant as fit for work if that was professionally possible.
- In his report, the Doctor expressed the opinion that the complainant was fit to continue in his employment as a Fisheries Officer but subject to the following restrictions:
- 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 should 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 complainant was not given a copy of this report nor did the respondent discuss its content with him. The complainant was, however, fully aware of the limitations averted to in the report.
- On 30th October, 2001, the complainant and the Chief Executive Officer of the respondent were both involved in inspecting a salmon trap. It started to rain and they took shelter in a nearby shed. While there, the complainant asked the Chief Executive Officer if he could have hand controls fitted to the jeep in which he travelled. The Chief Executive Officer responded to the effect that the complainant was only back at work after a prolonged period of sick leave and he wished him to take things easy and see how he progressed in reintegrating into the team in which he worked.
- The complainant did not raise the question of having hand controls fitted again. On 1st December, 2001, the complainant took annual leave which lasted until the new year. In January, 2002, the complainant, with others, became involved in a dispute with the respondent concerning the proposed fitting of the respondent’s logo to official vehicles. The complainant and a number of his colleagues objected to this and claimed that it exposed them to the danger of attack. In furtherance of this dispute, they refused to drive official vehicles. This dispute continued until September, 2002.
- The complainant was on annual leave between 19th July, 2002, and 16th August, 2002. On the expiry of his annual leave, the complainant became ill and went of sick leave. He applied for and obtained benefit under an income continuance scheme and resigned his employment with the respondent with effect from 1st January, 2003, without having returned to work.
Conclusions.
Arising from the facts as found or admitted, three issues arise for consideration, namely:
1. Was the respondent put on notice that the complainant wanted hand controls fitted to one of the respondent’s vehicles?
2. Was the complainant exposed to less favourable treatment on grounds of his disability by reason of the respondent’s failure to have hand controls fitted to one of its official vehicles?
3. Was the respondent in breach of any duty due to the complainant under section 16 of the Act in failing to fit one of its official vehicles with hand controls?
Need for Hand Controls.
Having returned to work in June, 2001, the complainant raised with an inspector the possibility of having hand controls fitted to one of the vehicles. In response, the claimant was told that he would not be expected to drive. This appeared to dispose of the matter since the it was not raised again by the complainant for some months. In September, 2001, the complainant was examined by the respondent’s doctor, who reported that if the complainant was expected to drive he should have a specially adapted vehicle.
This report cannot reasonable be interpreted as putting the respondent on notice that the complainant required access to a specially adapted vehicle. It merely stated that if driving he should have this facility. At that time the complainant was not driving because his driving licence was restricted. He had also been relieved of the obligation to do so by his inspector. Furthermore, the respondent had no reason to believe that the arrangement then existing was unsatisfactory or unacceptable to the complainant. It is further to be assumed that the complainant did not tell the doctor that his inability to drive was a source of anxiety and stress. Had he done so, it is reasonable to assume that the doctor would have adverted to this in his report, particularly as stress can exacerbate his condition.
The complainant did, however, expressly request that he be given access to an adapted vehicle in the course of his conversation with the Chief Executive Officer on 30th October, 2001. This discussion was brief and conducted in circumstances of informality. The Court is nonetheless satisfied that its import was to convey to the complainant that he was only expected to undertake the duties of his employment to the extent that he was able to do so and that he should not try to exceed his physical capacity. It was further indicated that the situation would be kept under review in light of developments. It is, however, clear that from that point onwards the respondent, in the person of the Chief Executive Officer, was on notice that the complainant felt that he should have access to hand controls.
Exposure to less Favourable Treatment.
The complainant was employed as a Fishery Protection Officer. His core duties involved the conservation and protection of fish stocks. He was obliged to drive in the course of his employment when required to do so but this was an ancillary duty. There were only three vehicles for use by seven Fishery Protection Officers, and clearly not all Officers could drive all of the time.
The complainant claims that in consequence of not being able to drive he felt that he was unable to make a full contribution to the work of the team within which he worked. This, he said, caused him anxiety and stress which resulted in an exacerbation of his illness. It is noted, however, that the complainant was restricted in fulfilling other aspects of his duties by reason of his disability, which would have been unaffected by the fitting of hand controls. The Court has no doubt that the combined effect of these restrictions caused the complainant anxiety and stress. The Court is further satisfied that this was appreciated by the respondent who sought to ameliorate the complainant’s situation by only requiring him to undertake such duties as were within his physical capacity. Nevertheless, having heard the complainant in evidence, the Court accepts that had he been able to drive his level of anxiety may have been reduced.
The Respondent’s Duty.
Within this factual matrix it is necessary to consider the nature and scope of the duty imposed on an employer by the Act in respect of an employee (or prospective employee) who has a disability.
Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision in Archibald v Fife Council [2004]IRLR651:
- “But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment.”
In this jurisdiction, the nature and extent of an employer's obligations to people with disabilities is prescribed by section 16 of the Act. This section provides in relevant part as follows:
- 16.—(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—
- (2) [ Not relevant]
(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.
Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed, they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if, with the benefit of special treatment, they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] IRLR 60)
The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee. (see the Determination of this Court in A Health and Fitness Club and A Worker (Determination 037) which was upheld by Her Honour Judge Dunne (as she then was) on appeal to the Circuit Court).
Application of Section 16 Duty.
In this case, the respondent realised that the complainant could not fulfil the full range of duties attaching to his occupation. The respondent’s response was to relieve the complainant, at least on a temporary basis, from the obligation to perform those tasks which he could not perform or had difficulty in performing. This included the requirement to drive an official vehicle. As far as the respondent was concerned, it was thus affording the complainant special treatment which allowed him to continue in his employment. The complainant did not demur from what he had been told nor did he make known to the respondent his concerns at not being able to drive in the course of his employment.
The complainant has criticised the respondent for its alleged failure to adequately discuss his request for hand controls. This aspect of the case must be considered in context. Approximately four weeks after raising the matter with the Chief Executive Officer, the complainant went on annual leave. Shortly after his return, the complainant became involved in a dispute concerning the placing of logos on official vehicles. In consequence, the complainant was not prepared to travel in an official vehicle and the question of having one of them adapted in order that he could drive did not arise. This dispute continued until September, 2002. The complainant went on annual leave in July 2002, and then on sick leave. He never returned to active employment. The respondent did not have any final decisions in contemplation in respect to the complainant’s continued employment. Moreover, in the circumstances of this case, the respondent could not have had any actual or constructive knowledge that the arrangements in place whereby he was not required to drive were a source of difficulty or distress for the complainant.
Against that background, the Court has come to the view that the respondent did not breach its statutory duty under section 16 of the Act in relation to the complainant. Accordingly, it must hold that the respondent is entitled to succeed in this appeal.
Determination.
It is the determination that the respondent did not discriminate against the complainant the disability ground. The appeal herein is allowed and the decision of the Equality Officer is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
15th November, 2004______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.