EDA1437

The Appellant appealed against that decision to this Court. The case was initially scheduled for a hearing before the Court on 20 May 2014. However the matter was adjourned on that day as one of the members of the Court recused himself with the agreement of the parties. The matter came before the Court on 2 September 2014.

Background

The Respondent Company operates a metals recycling business. The Complainant was employed by the Respondent as a HGV driver. In 2005 he developed type 1 diabetes. He was certified by his treating consultant to continue driving HGV. The Respondent acted in accordance with that certification until it was advised by its own medical advisors in 2010 that the Complainant was unfit to continue driving. This followed a number of incidents in which the Complainant had suffered hypoglycaemic episodes in 2009. The Complainant was accommodated with work in one of the Respondent’s scrapyards while he underwent treatment to establish if he could be restored to driving duties. The Respondent placed certain conditions on the Complainant to ensure that he was not left alone while at work and that he was adequately resourced to cope with his condition. It also appointed a “buddy” to provide support to him in that situation.

In late 2010 the Respondent Company, as a consequence of the general economic recession, found it necessary to reduce the size of its workforce. The redundancies affected all staff other than HGV drivers. The Complainant was not chosen for redundancy as the Respondent considered him part of that group. The Complainant’s buddy was however chosen and his position was made redundant.

The Respondent Company advised the Complainant that it could no longer accommodate him with work in the scrapyard and offered him a voluntary severance package on the same terms as all other employees affected. The Complainant rejected the offer. Having done so, the Respondent advised him that there was no other work available at that time. It told him that his only option was to go on sick leave pending clearance from his doctor to return to driving duties.

The Complainant went on sick leave and continues to be employed by the Respondent.

Complainant’s Position

The states the Respondent employed him as a HGV driver. After he was diagnosed with Type 1 Diabetes in 2005 he was certified fit to drive by his treating consultant. After he suffered an number of incidents in 2009 he was taken down from driving pending clearance by his doctor to resume driving duties. He states that he was assigned to work in one of the respondent’s scrapyards. He states that in and around June 2010 it became clear to him that the prospect of his returning to driving duties was becoming increasingly remote. He states that at that point he had a discussion with one of the Directors of the Company who assured him he would find alternative work for him in the company. He states that at that point he formed the view that he was now permanently removed from driving and assigned to other duties.

He states that when the Respondent introduced the redundancy programme in November 2010 he was part of the group whose jobs were no longer required. He states that he was told that he was not selected for compulsory redundancy but was offered voluntary severance on non negotiable terms. He states that he understood that the alternative to the severance terms offered was to remain at work in the scrapyard. He states that he was surprised when he was told that there was no work for him and that he should take sick leave until he was fit to resume driving duties. He states that this amounted to discrimination on the disability grounds contrary to Section 6(1) of the Act and entitled to be offered redundancy. He further states that the Respondent failed to provide him with reasonable accommodation within the meaning of section 16(3) (a) of the Act.

Respondent’s Position

The Respondent argues that the Complainant was employed as a HGV driver from 2001 onwards. It argues that in 2005 he was diagnosed with Type 1 Diabetes but was certified to continue as a HGV driver. It states that in 2009 the Complainant suffered a number of incidents that prevented him driving pending clearance by his own and the Company’s medical advisors. It states that while his treatment continued it provided him with alternative employment in one of its scrapyards. It states that it placed restrictions on his employment in order to protect his own and his work colleagues safety and health at work. It states that part of those restrictions included the appointment of one of his work colleagues as his “buddy” to ensure that he was constantly available to come to the Complainant’s assistance should he suffer a diabetic episode. It states that it continued to pay him his driver’s rate of pay during that time as it considered him at all times a HGV driver.

It states that when it made the Complainant’s “buddy” redundant in November 2010 it could not continue to provide him with alternative employment. It states that it made this clear to the Complainant at that time. It states that as he was employed as a driver his position was not being made redundant. However it offered him a severance package that was equivalent to that offered to those being made compulsorily redundant. When he refused that package it had no option but to place him on sick leave until he was fit to resume the duties for which he was employed.

It denies infringing the section 6(2) of the Act. It further argues that the Complainant was not refused reasonable accommodation to undertake the duties of the post for which he was employed. It argues that due to his medical condition he was not certified fit to undertake the duties of the post and no accommodation it could make would enable him to do so.

Findings of the Court

Having considered the extensive submissions and the evidence given by both the Complainant and the Respondent the Court finds as follows

The Respondent employed the Complainant as a HGV driver commencing in 2001. In 2009 he became unfit by reason of ill health to undertake the duties of the position for which he was employed. Pending certification by his own and the Respondent’s medical advisors that he was fit to resume work he was offered alternative work in one of the Respondent’s scrap yards. This work was given to him subject to some serious restrictions. Those restrictions included the requirement that he did not work alone and that someone was at all times present to ensure that he would be promptly assisted should he suffer a diabetic episode. For that purpose a “buddy” was appointed who was based permanently in the scrapyard.

The Court finds that the Complainant at all times expected to be restored to full health and to be certified fit to resume driving duties. The Court does not accept his evidence that he formed the view in June 2010 that his post in the yard had become permanent and that he was no longer employed as a driver by the Respondent. No evidence in support of that assertion was presented by the Complainant. The documentation from his treating Consultant doctor does not support it. He did not finally refuse to certify him fit to drive a HGV vehicle until July 2011 over one year after the Complainant states that he formed the view that he was no longer employed as a driver. The Court therefore finds that the Complainant was at all times employed as a driver by the Respondent.

The Court finds that the Complainant was, subsequent to the diabetic incident in 2009, no longer medically fit to undertake the duties of the post for which he was employed. The Respondent’s decision to offer him work in one of its scrap yards was not reasonable accommodation within the meaning of the Act. It was an offer of temporary alternative employment pending medical certification that he was fit to resume his driving duties. It was subject to certain conditions and the Court accepts the respondent’s contention that it would continue for as long as the Complainant abided by those conditions and the Respondent was in a position to provide that work. The Court accepts the Respondent’s argument that those conditions could not be met when the Complainant’s “buddy” was made redundant. The Court further accepts that the Respondent acted honourably when it offered the Complainant voluntary severance terms as an alternative to sick leave pending certification of fitness to return to driving duties.

The Court does not accept the Complainant’s contention that he was offered voluntary severance as an alternative to permanent employment and that had he known that the alternative was to take sick leave he would have accepted the severance terms on offer. It is clear from the evidence that the Complainant was at that time seeking to return to driving duties and was awaiting clearance from his doctor to do so. He was aware that his employment in the yard would cease and that he would be placed on sick leave once his “buddy” was made redundant. It was in that context that he was offered and rejected severance terms. The Court notes that the offer of severance was not withdrawn at the end of that meeting. The Court also notes that the Complainant sought to renegotiate the level of the severance payment on offer both directly with the Respondent on the day in question and subsequently through one of the Directors with whom he had a working relationship. The Court further notes that the Respondent subsequently, in response to those representations, increased the level of severance payment on offer to the Complainant. The Court also notes that the Complainant rejected that increased offer also at which point he was aware that the alternative to voluntary severance was to take sick leave until he was certified fit to return to driving duties. In those circumstances the Court finds that the Complainant’s version of events cannot be accepted.

The Court therefore finds that the Complainant was not discriminated against in his terms and conditions of employment contrary to Section 6(1) of the Act. He was medically unfit to undertake the duties of his post, was accommodated with alternative employment while that was available and placed on sick leave when it ceased to exist. The Court finds nothing contrary to the Act in that treatment.

The Court further considered the Complainant’s argument that he was denied reasonable accommodation within the meaning of the Act by his employer. The Court notes that section 16(1) (b) offers a complete defence to such a complaint provided it does not infringe the provisions of section 16(3) (a) of the Act.

In this case the Complainant argues that the Respondent was required to provide him with work in the scrapyard by way of reasonable accommodation under the Act. That argument is misconceived. The Act places an obligation on the Respondent to provide the Complainant with reasonable accommodation which would enable him to undertake the duties attached to the position for which he was employed. In this case the Complainant is employed as a HGV driver. The temporary work in the scrapyard was not in the nature of an accommodation to enable the Complainant to undertake such work. It was provided as a temporary alternative to such work pending certification by his own and the Respondent’s medical advisors that he was fit to resume his driving duties. It may well have been that had such certification been issued the Respondent may have had to provide the Complainant with some accommodation to enable him to meet his medical needs while driving. However that is not the issue before the Court. The issue before the Court is whether the Respondent’s decision to discontinue the temporary position in the scrapyard amounts to a failure to provide reasonable accommodation. The Court finds that there is no statutory obligation on the Respondent to provide alternative work to the Complainant. Rather the statutory obligation is to provide reasonable accommodation to undertake the work for which the Complainant was employed. In this case the driving of commercial vehicles. The decision to provide the Complainant with temporary alternative work in the scrapyard was not reasonable accommodation to enable him to continue his employment as a driver of commercial vehicles and consequently a decision to discontinue it cannot be an infringement of a section of the Act that was in no way relevant to that work.

Determination

The Court finds that the complaints are not well founded. The Court affirms the decision of the Equality Officer. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
5th December, 2014.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.