THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2011 - 227
PARTIES
Alan Wynne
(represented by Karen Talbot B.L. instructed by Lambe Divilly Solicitors)
and
Bus Éireann
File Reference: EE/2008/845
Date of Issue: 5th December, 2011
Keywords - Employment Equality Acts 1998-2008 - Sections 6 and 8 - Discriminatory Treatment - imputed a disability - pre-employment medical - bus driver.
1. Dispute
1.1 This dispute concerns a claim by Mr. Alan Wynne that he was discriminated against by Bus Éireann on the grounds of disability, imputed to him contrary to Section 6(2)(g) of the Employment Equality Acts 1998-2008 in terms of Section 8(1)(a) of the Acts.
2. Delegation of the complaint
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on the 8th December 2008. On the 5th May, 2011, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a hearing of the case on 15th November 2011, where both parties were in attendance.
3. Summary of the Complainants' case
3.1 The complainant claims that he applied for a driving position with the respondent in April 2008. He claims that a pre-condition for the position was that applicants must be holders of a full "D" driving licence, which he claims he holds. He claims he was invited to attend an aptitude test, interview and driving assessment, which he did on the 30th April 2008. He claims that he was told that he would be notified of the results within 10 days. The following day he received a phone call from the respondent inviting him to a medical examination for the 19th May, 2008. On the 12th May, 2008 he had a telephone call with an employee of the respondent who advised him that he had passed all stages so far and that he would receive an offer of employment subject to passing the medical.
3.2 The complainant attended the medical and filled out a pre-medical questionnaire, where he stated that he had no disability. He claims that he spoke with the nurse about the questionnaire and in particular where he claims not to have a disability as she had made an observation about the visual difference in Mr. Wynne's left hand. He claims that he attended Dr. A who carried out a medical examination of him including two tests on his left hand. He claims he was asked to push against the Doctors hand and to squeeze two of her fingers. He claims that he did this without a problem and to his mind had no problems. He claims that there was a definite focus on his left hand where he stated in his submission that comments were made about the possibility of further tests and that a decision would have to be made by the Chief Medical Officer.
3.3 The complainant claims that he heard nothing for about two weeks so he rang the respondent and he was told that something came up in his medical where certain restrictions could be imposed on him. On hearing this he visited his own GP for examination on the 28th May 2008. He claims that he received a letter from his GP which stated that it was his GP's opinion that Mr. Wynne was "fit to drive a bus/coach for a period of four and half hours followed by a mandatory break as per regulation". This letter was sent to the respondent. The complainant claims that he received a letter from the respondent on the 13th June 2008 advising him that his application was unsuccessful. He claims that the reason given was that the Medical Officer had "advised that a number of operational restrictions would be required in order to satisfy [his] personal circumstances" and that "these restrictions cannot be satisfied in the course of ordinary business".
3.4 The complainant in response to the respondent's internal memo from the Chief Medical Officer which states that Mr. Wynne would require a functional driving test and if he passed it, would require limited time behind the wheel before a break, regular breaks during the working day and a restriction in the number of consecutive days he could work and no more than 5 days per week, claims that this is an unfair assessment following a cursory, subjective and arbitrary examination carried out by Dr. A, where no objective criteria was applied to the assessment. He further contends that the respondent failed in its duty to attempt to provide reasonable accommodation, although he did not deem it necessary as he claims that he did not have a disability. He claims that he is a qualified carpenter and for many years has driven taxis and buses/coaches for a living; he is an avid swimmer and he never considered himself to be impaired or disabled in any way until his application for a position with Bus Éireann, who has refused him a position with it on the basis of an imputed disability.
4. Summary of the Respondent's case
4.1 The respondent did not dispute that Mr. Wynne applied for and completed an aptitude test, interview and practical driving test with it in April 2008. Nor has it disputed that Mr. Wynne was asked to attend for a pre-employment medical on the 19th May 2008, which was carried out by Dr. A, who as part of her medical qualification has a post graduate in Occupational Medicine and works with the Chief Medical Officer at the respondent.
4.2 The respondent presented Dr. A to give evidence on its behalf. Dr. A claims that she medically examined Mr. Wynne on the 19th May 2008. She explained that as part of her examination it was visually obvious that Mr. Wynne's left hand was structured differently to his right hand. She claims that her medical assessment includes her observing the patient once they come into the room and it was clear that Mr. Wynne has an underdeveloped left hand and as part of her role in the medical assessment she closely examined Mr. Wynne's left hand. She claims that she asked him to undergo two practical tests. She claims that based on her medical knowledge and her knowledge of the job requirements, she held concerns that Mr. Wynne would have difficulty maintaining his grip on the steering wheel when driving continuously for long periods due to muscle fatigue because of the structural development of his left hand.
4.3 The respondent provided the Tribunal with a memo from the Chief Medical Officer from the Occupational Health Unit, CIE Medical Department which outlined that Mr. Wynne was examined and that "He needs a functional driving test with an instructor from the driving school. If he passes this he will need restricted duties in terms of: (1) Hours behind the wheel - maximum two to two and a half hours before break. (2) Regular breaks during the working day - at least two to three per working day. (3) Number of working days per week - maximum five per week with day off placed to produce no more than three consecutive days working".
4.4 The respondent in turn wrote to the complainant and stated that based on the Chief Medical Officers advice that the "... restrictions cannot be satisfied in the course of our ordinary business ... I regret to advise you that your application has been unsuccessful". At the hearing, the respondent presented Mr. B, Regional Operations Supervisor, whose evidence related to a specific roster where the bus driver would be expected to drive continually for a number of hours depending on the commuter service which is over the maximum time outlined in the Chief Medicals Officers report. Mr. B's evidence is that the restrictions and conditions in the Chief Medical Officers report would be unworkable in the organisation; to restrict Mr. Wynne's driving time would require it to hire another driver to cover the recommended break times and days worked outlined in the medical report. The respondent claimed that following its medical evidence and assessment it has to ensure that it provides a service that is safe for himself and the travelling public.
5. Conclusions of the Equality Officer
5.1 The issues for decision that I will consider are (i) whether the respondent imputed a disability to the complainant, (ii) whether the complainant has established a prima facie case of discrimination on the disability ground and (iii) in the event that he has so established a case, whether the respondent has rebutted the complainant's claim. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts, 1998 and 2008, which states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must first establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
Claim of discrimination on the disability ground
5.3 Section 6(1) of the Employment Equality Acts provides that:
Discrimination shall be taken to occur where, on any of the grounds mentioned 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."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(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"),
5.4 Disability" is defined in Section 2 of the Acts as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
Issue whether respondent imputed a disability to the complainant
5.5 It is clear that the onus rests with the complainant to establish a prima facie case of discrimination on one of the grounds covered by the Acts. In this case the complainant has stated that he does not have a disability and that the respondent had imputed a disability on him following a medical examination. The respondent's medical evidence is very clear that when Mr. Wynne presented to it for the pre-employment medical it was obvious that Mr. Wynne's left hand was different to his right hand and during the medical it carried out practical tests on his hand and from the clinical medical assessment Dr. A stated that the left hand is structurally underdeveloped as compared to his right hand. I am satisfied from the evidence from the respondent's medical evidence that Dr. A and the Chief Medical Officer were of the opinion that Mr. Wynne's left hand was structurally underdeveloped and therefore because of this certain restrictions would have to be put in place before he would be offered a bus driving position. In the circumstances, I find that the respondent imputed a disability to the complainant within the meaning of the Acts as a consequence of his left hand on the basis of potential muscle fatigue to his left hand.
Substantive case
5.6 It is clear that following the medical assessment, Dr. A in consultation with the Chief Medical Officer decided that certain restrictions were required to be a driver, namely, that he would have to undergo a functional driving test and then restricted hours behind the wheel of up to 2 and a half hours before a rest period; three or more breaks in the day and a limited number of days to be worked consecutively. I note that Mr. Wynne was waiting a number of weeks to hear from the respondent so he decided to make enquires as to his medical result and, when he was told that there was some issue with the medical, he decided to visit his own GP who in turn, following assessment, sent in an opinion that Mr. Wynne would be, in his opinion, able to drive four and half hours before a rest period is required. I note that the respondent decided that based on its medical report and for operational reasons, it could not offer Mr. Wynne a driving position with it as it would require it to take on an additional employee(s) to cover Mr. Wynne's rest periods.
5.7 I am satisfied that Mr. Wynne had passed all parts of the respondent's pre-employment tests for the position up to the pre-employment medical. I am satisfied that the respondent was within its rights to conduct such a medical and as part of its medical to address concerns noted by the qualified medical consultant on the basis of the information available to it. I am satisfied that the respondent refused to offer Mr. Wynne a position with it on the basis of the medical evidence provided by the Chief Medical Officer, namely, that his left hand could provide him with a difficultly in prolonged driving situations and therefore the respondent could not provide a position on the basis of its current roster programme. Section 16 of the Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post providing that the person could do so with the provision of special treatment or facilities, providing the provision of such did not give rise to more than a disproportionate burden on the employer. Section 16 (1) states,
"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 -
(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."
However, Section 16(3)(a) of the Employment Equality Acts tempers that defence: "For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer."
5.8 The Labour Court in A Health and Fitness Club v A Worker (EED037) (and upheld on appeal in the Circuit Court) set out an approach that an employer should take into consideration in relation to an employee in order that a respondent can rely on this defence, ........."if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."
5.9 I have also taken cognisance of the decision of the Equality Tribunal in An Employee -v- A Company , where the Equality Officer refers to a decision of Dunne J. in the Circuit Court on hearing the appeal of A Health and Fitness Club v A Worker (EED037) as mentioned above. The Equality Officer said in paragraph 4.11;
" I note that the complainant submitted that there was a failure to provide appropriate measures that would have enabled the complainant to return to the workplace. I note both parties refer to Humphreys v Westwood Fitness Club. In this case Dunne J. sets out a process lead approach to a person with a disability which essentially holds that:
- even if there is a strong possibility that the employee may in fact be incapable of doing the job, the obligation to provide appropriate measures comes first
-that an employer is thus obliged, when on notice of an employee's disability, to go in good faith through a process of checking objectively, with qualified expertise where needed, what is the actual medical situation, what are the necessary implications for work, and what can be mitigated by appropriate measures,
- and that an employer who has failed to go through that process will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is probably serious enough to render the employee not fully capable of undertaking their duties under section 16(1).
It was submitted by the complainant that the respondent failed to consider any alternatives to enable the complainant to return to his post. The complainant's representative referred to a letter from a named doctor that suggested that it a phased approach might be suitable. I note that the medical opinion sought by the respondent specifically states that: "no recommendations that could be made in relation to accommodations that it would be appropriate in managing [the complainant's] future risk within the workplace". I am satisfied that the respondent has completed a process-oriented approach when considering the complainant's return.
5.10 I am aware that the facts in the case law referred to above differs from the facts in the case before me for consideration. The case before me is in relation to access to employment where there is no employer and employee relationship but rather a prospective employer and a prospective employee. However, I note the decision of the Equality Officer in another access to employment case DEC-E2010-054 - An Applicant -v- A County Council, where the Equality Officer deemed it appropriate to apply the Labour Court test set out in paragraph 5.8 above, namely where he said that,
"In applying that approach to this case it is clear that the respondent, by carrying out a more detailed medical assessment when the complainant was being considered for the permanent position, considered they had all the material facts. The medical assessment raises doubts about the by complainant's capability in the future but does not make an assessment of when the periods of absence would start occurring or how long they would be. Neither was the complainant given the opportunity to comment on the medical evidence. It can be difficult to predict how a medical condition may manifest itself in the future and therefore any decisions based on such predictions should be approached with caution. I understand that the second medical report raised concerns for the respondent about the complainant's condition in the future but given the uncertainty of the language in the report I do not accept that they had sufficient information to withdraw the offer of employment. In order to complete the two stage test and satisfy section 16(3) of the Acts which states: "For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person's employer.", I would have expected the respondent to have consulted with the complainant and agreed to refer her to a specialist. I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts when withdrawing the offer of employment for the permanent position and that this amounts to discriminatory treatment in relation to her disability."(My emphasis added).
5.11 I am satisfied the respondent decided on the basis of its medical evidence that it was not in a position to offer Mr. Wynne a driving position because it would not be able to make the necessary roster arrangements to accommodate Mr. Wynne's circumstances. However, it is clear that although Mr. Wynne had sent in his own medical evidence stating that he was fit to drive for up to 4 and half hours it appears that the respondent seemed to have disregarded it and in turn did not engage in any consultation with the complainant whatsoever and simply refused his application.
5.12 I am satisfied that in such cases the prospective employer has to satisfy themselves that a potential employee is "fully competent and .... fully capable of undertaking the duties attached" to the position for which they are being considered. In order to assess the complainant's capability he completed a pre-employment medical for the bus driver position. The medical report stated that the complainant would require a functional driving test and then it placed a maximum driving time on him following this should he pass it. However, it is the undisputed evidence that Mr. Wynne held a full coach/bus driving licence and had already taken a functional driving test as part of his pre-employment assessment under the stewardship of the respondent (and where Mr. Wynne claims that his instructor said he had passed) and that he was driving professionally at that time.
5.13 I have considered the evidence of the respondent in relation to the commuter bus service it provides, it gave me particular examples of its expressway services that are in the region of 4 hours driving to the destination allowing for a 45 minute break and then returning another 4 hours. It states that in the shorter commuter type services it would not be possible within the current rostering arrangement.
5.14 I am satisfied that in applying the test set out by the Labour Court the respondent decided to make its decision without fully assessing the extent of the Mr. Wynne's capabilities and by avoiding getting involved in a consultation process about the perceived difficulties its medical consultants particularly when its medical advice did not suggest that Mr. Wynne was not deemed unfit to drive for the respondent but rather that certain restrictions were required and this evidence is contrary to Mr. Wynne's own volunteered medical evidence.
5.15 I am satisfied that the respondent should have engaged with and consulted the complainant about the medical evidence available to it and allowed the complainant to offer his own expert medical evidence and reserved its decision until that was explored. This would have included giving Mr. Wynne the opportunity to comment on the medical evidence, particularly since that the medical evidence did not deem him incapable of carrying out the job but rather that certain measures would have to be assessed. Accordingly, I am satisfied that the respondent was not in possession of all sufficient facts to be able to rely on a defence under Section 16 of the Acts when arriving at its decision not to offer Mr. Wynne a position as a bus driver and that this amounts to discriminatory treatment in relation to his disability.
6. Decision
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the disability ground in terms of section 6(2)(g) of the Employment Equality Act, 1998 contrary to Section 8 of the Act in relation to appointment to the post of bus driver.
6.2 In accordance with Section 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant the sum of €5,000 (five thousand euro) compensation for the effects of the act of discrimination.
6.3 I also order that the respondent write to the complainant and advise him of its next recruitment drive for similar positions so that he is fully aware of the next opportunity to apply for a position with it.
______________
James Kelly
Equality Officer
5th December 2011