Mr. Patrick Moran
(Represented by SIPTU)
vs
Bus Eireann
1. DISPUTE
1.1 The dispute concerns a claim by SIPTU, on behalf of Mr. Moran, that he has been subjected to discriminatory dismissal by Bus Eireann on the grounds of age and disability within the meaning of Sections 6(1) and 6(2) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts.
2. BACKGROUND
2.1 The complainant was employed as a school bus driver by a contractor (hereinafter to be referred to as Mr. A) for a period of 8 years. On reaching the age of 65 years he was required by the respondent to undergo a medical examination. The complainant failed to reach the required standard in his eye test and his hearing test. He was told that he would require glasses and a hearing aid. Another medical examination was undertaken but the complainant was not allowed to wear his hearing aid and he failed his hearing test for a second time. He was then told that the respondent would not employ persons as drivers where they were required to wear a hearing aid. The complainant acknowledges that, while he is employed by Mr. A, the actions of Mr. A are governed by the respondent organisation. It is his contention that he has been subjected to discriminatory dismissal by the respondent on the grounds of age and disability. The respondent denies the allegations and point out that the complainant is not an employee of the respondent organisation.
2.2 Consequently the complainant referred his complaint of discriminatory dismissal to the Director of Equality Investigations on 9th September, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 16th March, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 14th August, 2007. Further information was received from both parties and the final information was received on 17th October, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant was born on 29th August, 1939. He states that he has been driving a 14 seater bus for Mr. A who had a contract with Bus Eireann for the past 8 years. The complainant says that on reaching the age of 65 he was advised that he had to undergo a medical examination, which would be carried out by the respondent's medical personnel. According to the complainant this was the first time that he was required to undergo a medical examination with regard to his employment by Mr. A and he states that this clearly constitutes discrimination on the age grounds. The complainant says that even though Mr. A is his employer his actions are totally governed by the directions of Bus Eireann.
3.2 The complainant says that on completing his medical examination he was advised that he would require a Hearing Aid and Glasses by the examining Doctor. He acquired these at a cost of €1,950 and €210 respectively. The complainant says that he has never had a problem with day-to-day conversation or has never experienced any difficulties with his vision. It is the complainant's submission that, having been originally advised by Bus Eireann medical personnel that he required a hearing aid and glasses, the decision was made by the respondent's Chief Medical Officer with regard to his position even though the Chief Medical Officer never examined him. According to the complainant an audiologist has stated that his hearing is up to the required standard with the assistance of the Hearing Aid. The complainant says that the respondent has not provided him with any information regarding his medical and he was told that it is not the respondent's policy to employ drivers with hearing aids.
3.3 The complainant notes that the School Bus Service is wholly funded by the Department of Education and Science. It is his contention that the respondent should not be acting in a manner, which is discriminatory against workers employed by contractors. The complainant says that it is particularly reprehensible that having advised him regarding the hearing aid that a decision was then taken not to accept this. It is the complainant's submission that he had intended to continue driving for the foreseeable future. The complainant further notes that no risk assessment was conducted to establish that on objective grounds e.g. safety he presented a risk.
3.4 The complainant asks the Equality Officer to find against the respondent on the grounds of age and disability.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent states that it is clear from the complainant's submission that the complainant was not and is not an employee of the respondent organisation. Rather his employer is Mr. A and it is the complainant's contention that Mr. A's actions are totally governed by the directions issued by the respondent. The respondent sets out the provisions of the Acts under Section 2 which define 'employee', 'employer' and 'contract of employment' and states that the complainant has personally agreed to execute a service for his employer Mr. A. According to the respondent this service is to drive the school bus, which is operated by Mr. A. The respondent notes that Mr. A does have a contract with the respondent organisation to provide such a service but the work is undertaken by his employee i.e. the complainant. It is the respondent's submission that the complainant is being paid directly by Mr. A and the terms and conditions of his employment are determined by agreement between the complainant and Mr. A.
4.2 The respondent says that the complainant is not and will not be (whether or not he successfully passed a medical examination authorised under the auspices of Bus Eireann) an employee of the respondent organisation. Therefore it is the respondent's contention that it has not discriminated against the complainant on the grounds of age or disability. The respondent further submits that the Employment Equality Acts, 1998-2007 have no application to the medical examination carried out by Bus Eireann Medical Department in May, 2005. Notwithstanding the above the respondent states that the medical standards to which Public Service Vehicle Drivers are examined in the occupational health unit of the respondent organisation coincide with the standard outlined both by the Department of Vehicle Licences Authority in the United Kingdom and also Irish Regulatory Standards. The respondent says that these standards are designed to ensure that the same medical standards of fitness to drive apply across all grades of driver within the respondent organisation and are clearly relied on in assessing the suitability or otherwise of a person to drive a bus not owned or operated by the respondent organisation by way of a contract between the persons' employer and the respondent organisation.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory dismissal by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2007 on the grounds of his age and disability. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 It is clear and accepted by both parties that Mr. A was the complainant's employer. I note that there was no written contract between the complainant and his employer.
5.3 At the hearing of this claim the respondent confirmed that the complainant was subject to a medical examination on 17th October, 1997 prior to commencing employment. This medical examination was undertaken by a local doctor who was on a panel of doctors for the respondent organisation. The respondent had confirmation of the complainant's attendance at the medical examination and a notification from the Chief Medical Officer that he was medically fit to drive the school bus. The complainant indicated that he had no recollection of this medical examination and undertook to seek details of same from the Chief Medical Officer of the respondent organisation. These details confirmed that such a medical had indeed taken place.
5.4 The respondent provided me with a copy of two contracts between it and the contractor in this case Mr. A. The first contract was in 1997 and stated that no person shall be allowed to drive a school bus unless he is under 65 years and is a competent and experienced driver. Provision was also made in this contract for persons employed to drive school buses attending for medical examinations. Under Section 34(4) of the Employment Equality Act, 1998 it was held not to be discriminatory to fix different ages for the retirement of employees whereas under the provisions of the Employment Equality Act, 2004 this age limitation was removed. The second contract was in 2005 and it removed the reference to persons over the age of 65 years. However it also made provision for the medical examination of persons employed to drive school buses.
5.5 In this claim the complainant has stated that he has been indirectly discriminated against by the respondent on the grounds of age. The basis for this argument is that the respondent imposed an obligation on him to attend for a medical examination on reaching the age of 65 years. The complainant further contends that the respondent has discriminated against him on the grounds of disability. The basis for this argument is that he alleges that he was told that if he acquired a hearing aid to resolve his hearing problem, he would then be in a position to pass his hearing test. However at the second hearing test he was informed that he could not use his hearing aid to undertake the hearing test and persons wearing hearing aids would not be certified fit to drive buses. It is the complainant's contention that the respondent's failure to carry out a risk assessment of him performing his duties resulted in him being discriminated against on the grounds of disability.
5.6 The respondent denied all the allegations and noted that it was not the complainant's employer. It further stated that the medical examination carried out on the complainant pre-dated the coming into force of the Employment Equality Act, 2004 which removed the age limitation of 65 which had been in place under the provisions of the Employment Equality Act, 1998.
5.7 The preamble to the Act of 1998 states that the "Act is to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in and in connection with employment". Section 77 of the Employment Equality Acts, 1998-2004 sets out the parties to a claim under the Acts as a complainant and a respondent. A respondent is defined as "the person who is alleged to have discriminated against the complainant i.e. an employer. Under Section 2 of the Acts the terms "employee" and "contract of employment" are defined. In terms of the complainant's medical examinations at the age of 65 years I note that the respondent advised Mr. A of the need for the complainant to attend for this medical. I also note that the outcome of the process was advised to the contractor. There was direct contact between the respondent and the complainant in relation to the details of the medical examination itself. Having regard to all of the above I am satisfied that the respondent did not employ the complainant. In the circumstances I find that this claim is not validly before me for investigation.
6. DECISION
6.1 In view of the foregoing I find that Mr. Moran has not brought a valid claim under the provisions of the Employment Equality Acts, 1998-2007 as Bus Eireann (the named respondent) was not in fact his employer.
______________________
Gerardine Coyle
Equality Officer
31st October, 2007