EDA0613

The Issue

The Complainant is a bus driver employed by the Respondent. He suffered an injury in the course of his employment which rendered him unable to work. While out of work he was paid under the provisions of the Respondent’s welfare scheme. The Respondent has in place another scheme which applies to employees who suffer a criminal assault in the course of their employment leading to incapacity for work. This latter scheme provides for more favourable treatment in terms of payments and their duration than the welfare scheme.

The Complainant contends that in not affording him the same terms as those provided by the assault scheme the Respondent discriminated against him contrary to s 8 of the Employment Equality Act 1998 (the Act.)

The claim was investigated by a Equality Officer of the Equality Tribunal who found against the Complainant. The Complainant appealed to the Court.

The Complainant’s case.

The Complainant contends that he suffers from a disability within the meaning of the Act. He submitted, through Counsel, that other named employees who suffered from a different disability acquired as a result of an assault in the course of their work were treated more favourably by the Respondent while incapacitated. The Complainant relied on the combined effect of Section 6(1) and 6(2)(g) of the Act in advancing his claim. He submitted that he was treated less favourably than a person with a different disability was treated and that this less favourable treatment amounted to unlawful discrimination.

The Respondent’s case.

The Respondent contends that the difference in treatment arose from the fact that the comparators were assaulted in the course of their duties whereas the Complainant was not. The Respondent submitted that since the different treatment complained of was not based on a discriminatory ground it could not be unlawful. The Respondent cited the paradigm case of two drivers who suffered exactly same injury, one as a result of an assault and the other in any other circumstances. It pointed out that under the scheme the person who was assaulted would be paid under the assault scheme whereas the person who was not assaulted would be paid under the welfare scheme. This example, it was submitted, illustrates that the disability per se could not be the reason for the different treatment.

Conclusions of the Court.

The Facts.

There is no dispute as to the facts of this case. It is accepted that colleagues of the Complainant who suffered incapacity as a result of assault in the course of their employment were treated more favourably than the Complainant was treated in respect of his incapacity. Moreover, it is accepted that the Complainant suffered from a disability within the meaning of the Act at all times material to his claim. It is further agreed that in monetary terms the difference between what the Complainant received over the duration of his absence and that which an assaulted colleague would receive over a similar period amounted to some €21,000.

The Law Applicable

This case turns on the true construction of Section 6(1) of the Act. This provides as follows:-

• • 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.
    
    (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
  • 
    (a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
    
    (b) that they are of different marital status (in this Act referred to as "the marital status ground"),
    
    (c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
    
    (d) that they are of different sexual orientation (in this Act referred to as "the sexual orientation ground"),
    
    (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as "the religion ground"),
    
    (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
    
    (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
    
    (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as "the ground of race"),
    
    (i) that one is a member of the traveller community and the other is not (in this Act referred to as "the traveller community ground").
    
    

Conclusion

For the foregoing reasons the Court holds that the Respondent did not discriminate against the Complainant in the manner alleged.

Determination

The appeal herein is disallowed and the Decision of the Equality Officer is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
18th September, 2006______________________
JBChairman



NOTE

Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.