THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-184
PARTIES
Corbett
-v-
Bus Eireann
File reference: EE/2008/153
Date of issue: 26 September 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8, 16 - disability- access to employment - reasonable accommodation - occupational requirement.
1. Dispute
1.1 This dispute concerns a claim by Mr John P. Corbett (hereinafter "the complainant") that he was subjected to discriminatory treatment by Bus Eireann (hereinafter "the respondent") on the ground of disability in terms of Section 6 of the Act and contrary to Sections 8 of the Employment Equality Acts in relation to access to employment.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 10 March 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 26 January 2011 the date the complaint was delegated to me. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 25 May 2011. A number of issues arose at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties until 7 July 2011.
2. Summary of the Complainant's Submission
2.1 The complainant submitted that he was discriminated by the respondent when he applied for a job as a coach bus driver. He states that he was in very good health and had completed 22 years exemplary service in the military/Irish army. The complainant states that in order to gain employment he had used his last reserve of income and also received assistance from his job facilitator at the Department of Social Welfare to fund coach/bus driving lessons. He states that he passed the Road Safety Authority's coach/bus driving theory and practical tests at his first attempt. He subsequently applied for a position as a coach bus driver with the respondent. The complainant submitted that he passed the theory test and the coach driving test and was called to interview. From the interview, the complainant was referred for a medical examination. At the medical examination, after an audio test he was informed that his hearing was not up to the required standard.
2.2 The complainant submits that he subsequently attended a private ENT consultant who told him that he did not require a hearing aid. The complainant submits that he has 20 years incident free driving. He submits that not hearing very low beeps on an audio test would not and has not had any affect on his ability to drive a bus, coach or car. He submits that he has a 28 year incident free driving record, a full up to date D coach licence and has driven a 48 seat coach on a rural school run for a private operator who was subcontracted to Bus Eireann. He states that he drove this coach without any public risk or hearing related incident. He also submits that the job application made no reference to hearing criteria for employment. He considers that he is being discriminated against on the grounds of a very slight disability. He states that subsequently he had no choice but to move to England in order to seek employment.
3. Summary of the Respondent's Submission
3.1 The respondent submits that, other than his medical assessment, the complainant had passed all other tests and pre-conditions to become a Bus Driver. The complainant was directed to attend a medical assessment which included an automated hearing test which he failed. The claimant then underwent a second hearing test this time using a slightly different hearing test called the Bekesey hearing test which he also failed.
3.2 The respondent states that it has its own hearing test for potential drivers which it has applied since 2003 and any drivers who have a hearing disability below the required threshold cannot be considered for a position with Bus Eireann or Dublin Bus. The respondent states that in Ireland, unlike many other countries, the Road Safety Authority has not set a hearing standard for driving other than a general warning that applicants for a Group 2 driving licences (Large Vehicles) require a higher standard than Group 1 licences. However the respondent submits that the Road Safety Authority is currently preparing guidelines for hearing requirements for Group 2 licences in consultation with ENT Medical Consultants and Occupational Consultants which includes the Chief Medical Officer (CMO) of CIE.
3.3 The respondent states that the complainant was found by the CMO to have a severe hearing deficiency on the left ear and a moderately severe hearing deficiency on the right ear. The CMO has set what he considers to be an appropriate standard for the hearing test based on public safety. The respondent contends that the CMO has made reference to standards in other countries in setting the threshold for CIE. Bus driving is a hearing critical job in that the driver must have full awareness of warning signals, horns, engine malfunction, engine acceleration, radio communication with the bus depot and other sounds. In addition the driver must also be able to hear anything that is happening with the passengers behind him. This is particularly so when the passengers are school children. There have been incidents in the past when this has been critical. The respondent instanced an incident where children had opened the emergency exit at the back of the bus and the driver did not hear or ignored shouted warnings from other children leading to a situation where a child has fallen out of a moving bus.
3.4 In relation to the complainant's reference to hearing aids, the respondent states that the CMO considers hearing aids unsuitable for bus drivers since they merely amplify all noise in what can be a noisy job. The respondent accepts that there is a driver based in Limerick who wears a hearing aid but he joined in 1974 and has only in recent years required a hearing aid. He attends the CMO every year to have his hearing tested and he has been assigned a quieter and more rural route. Since the introduction of the hearing test as part of the medical examination for applications for bus drivers' jobs all successful job applicants must pass the hearing test without a hearing aid.
3.5 The respondent submits that the complainant was found to be unfit to drive because of a hearing disability but the reason for the requirement to pass a hearing test is public safety. The respondent submits that this is not discrimination on grounds of disability as set out in Section 16 of the Act.
4. Conclusions of Equality Officer
4.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by both parties. The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of disability in relation to access to employment in terms of Section 6 of the Acts and contrary to Section 8 of the Acts. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including disability. Section 8 provides inter alia that an employer shall not discriminate against a prospective employee in relation to access to employment.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised. At the hearing the complainant confirmed that he attended a private ENT consultant after the initial hearing test undertaken by Bus Eireann. His consultant advised him that he had high tone deafness in his left ear and some degree of hearing loss in his right ear. While these were similar results to those that he had received in the Bus Eireann medical, he stated that his consultant advised him that this would not deter him from driving vehicles on public roads. It is undisputed that the complainant has hearing loss. I therefore find that the complainant has a disability within the meaning of section 2 of the Acts. It is also clear that the complainant was deemed by the respondent to be unfit for recruitment as a part-time school bus driver solely because, due to his hearing loss, he failed to meet the required hearing standard threshold set by the respondent. I am satisfied that the complainant has established a prima facie case of discrimination on the disability ground.
4.3 In its defence the respondent relies on section 16 of the Acts which states inter alia:
(1)"Nothing in this Act shall be construed as requiring any person to recruit ...... an individual to a position, .......,
(b) if the individual .... is not 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
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."
4.4 In this case, the respondent states that it introduced in 2003 hearing standards following research on the subject. The respondent submitted that these standards are in accordance with international best practice. The respondent also submitted that use of a hearing aid would not assist the complainant in attaining the hearing standards. At the hearing the complainant stated that his consultant also advised him that a hearing aid would not be of any assistance to him. The hearing difficulty, which the complainant has, is noise induced hearing loss which relates to hearing loss at higher frequencies between 3000 hz and 6000 hz. In light of the evidence from both sides I am satisfied that there were no appropriate measures in the way of reasonable accommodation that could be provided by the respondent to assist complainant in attaining the hearing standards set by it.
4.5 The next question to be addressed is whether the hearing standards set by the respondent are appropriate and constitute a genuine and determining occupational requirement for the post of Bus Driver. The respondent submitted that the job of driving a public service vehicle is hearing critical. I am satisfied that it is open to the respondent to set such hearing standards as it considers appropriate. However the standard set by the respondent is particularly high and I must decide if the particular standard set is appropriate and a genuine and determining occupational requirement. The test set by the respondent is that the average hearing threshold of the better ear must be less than 40 decibels (db) at frequencies of 500, 1000, 2000, 3000 and 4000 hz. In a Bekesy hearing test, the complainant failed to meet this requirement at the frequencies of 3000hz and 4000 hz. The respondent submitted that the standards it applies are in accordance with international best practice. However the evidence, it submitted in support of this argument, shows that the threshold it applies is not applied internationally. The papers it submitted show that the US federal standard applies a test only up to the frequency of 2000hz, a hearing standard the complainant could meet. In addition the evidence submitted by the respondent show that the Canadian authorities also set an upper frequency threshold for its hearing tests of 2000hz. The evidence shows that in Australia testing applies up to the frequency threshold of 3000hz. The respondent also submitted a copy of the UK's Driver and Vehicle Licensing Agency (DVLA) Guide for Medical Standards of Fitness to Drive. There is no standard hearing test set down in this. At page 44 of the guide there is a heading entitled deafness (profound) with a statement that the proven ability to be able to communicate, in the event of an emergency by speech or by using a device such as a Minicom, is of paramount importance for holder of Group 2 licences.
4.6 In written submissions and in oral evidence the respondent argued that it is the main provider of bus services in the State and that it is entitled to set a reasonable standard of hearing in the interests of public safety. The respondent argued strongly that bus driving is a hearing critical job and that this is particularly the case when the passengers are school children. I asked the respondent what procedures were in place since 2003 to test the hearing of currently employed bus drivers and the specific intervals at which they are tested. In response, the respondent advised that there is no routine regular assessment of medical fitness among bus drivers. However the respondent advised that from 2003 all Bus Eireann drivers, when renewing their driving licences, (usually renewed at ten yearly intervals), undergo the same audio or hearing thresholds tests as applied to the complainant in his pre -employment medical.
4.7 At the hearing in view of the emphasis that the respondent had made in relation to bus driving of school children being a hearing critical job, I asked the respondent what procedures were in place for the testing of school bus drivers working for its sub-contractors. I was advised by the respondent that guidelines are issued to medical practitioners performing medical examinations on school bus drivers working for sub-contractors to ensure that all such drivers met hearing thresholds. I asked for a copy of the guidelines issued by the respondent which were provided to me after the hearing. I note from these that medical practitioners are advised to examine applicants to "the DVLA (Driver and Licensing Agency) Medical Standard of Fitness to Drive" guidelines. As previously outlined at Para. 4.5, these guidelines relate to an ability to be able to communicate in the event of an emergency by speech or by using a device such as a Minicom, there is no reference whatsoever to a requirement to meet any other hearing threshold.
4.8 It is the respondent's contention that bus driving is a hearing critical job. Having considered the arguments put forward by the respondent in defence of this case, I accept the respondent's argument that an adequate standard of hearing is a genuine and determining occupational requirement for the post of Bus Driver. However, in the absence of supporting documentary evidence, I find that the respondent has not established, in either the international context or more specifically within its own organisational context, that the significantly high hearing thresholds set by the respondent are appropriate and constitute a genuine and determining occupational requirement for the post of Bus Driver. In a situation where it cannot be aware of the state of hearing of significant numbers of bus drivers either working directly for it or for its sub-contractors I cannot find that the respondent has objectively justified the particular hearing threshold it applied. It follows that the respondent cannot therefore rely on the defence provided by section 16 of the Acts. Accordingly, the complainant is entitled to succeed in his complaint.
5. DECISION
5.1 having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment in relation to access to employment on the basis of the disability ground has been established and this element of the complaint succeeds.
5.2 In accordance with section 82 of the Acts I award the complainant €6,000 in compensation for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
____________________
Deirdre Sweeney
Equality Officer
26 September 2011