EMPLOYMENT EQUALITY ACTS 1998-2015
Decision DEC – E2016 – 079
PARTIES
Mr A (represented by Ellen O’Callaghan B.L., instructed by the Community Law and Mediation)
and
A Transport Company (represented by their in-house solicitor)
File References: et-152499-ee-15
et-152688-ee-15
Date of Issue: 24th May 2016
Keywords: S. 16 – reasonable accommodation – capability – engagement with worker – knowledge of full facts – Humphries v. A Fitness Club EED037 – no obligation to adapt rehabilitation position – Nano Nagle School v. Marie Daly [2015] IEHC 785
1. Claim
1.1. The case concerns a claim by Mr A that the transport company who employed him discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2015, in terms of training, conditions of employment, failure to provide reasonable accommodation, discriminatory dismissal and other discriminatory conduct.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 8 January 2015. Subsequently, he also made a complaint under the Equal Status Acts 2000-2011, which was received on 12 January 2015 and is in substance identical with his complaint under the Employment Equality Acts. A submission was received from the complainant on 5 November 2015. A submission was received from the respondent on 1 February 2016. On 23 February 2016, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 joint hearing of the case on 5 May 2016.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that he commenced working for the respondent as a bus driver in 2006. In 2010, the complainant suffered an accident at work during which he ruptured his Achilles tendon. The complainant received surgery and other treatments for this injury. Subsequent to the accident, the complainant developed panic attacks and agoraphobia, as well as generalised depression and anxiety.
2.2. After attending the respondent’s occupational health physician, the complainant undertook refresher driver training, but due to his psychiatric conditions, was unable to complete the training.
2.3. The complainant states that he felt under pressure to return to work and returned to his driving duties in March 2011. After about three days, the complainant felt unfit to continue driving and declared himself unfit to drive. He was sent back to driver training school, but was again unable to complete the training without a panic attack. He was then out of work from May 2011 to December 2013.
2.4. In December 2013, the complainant returned to work for the respondent under a temporary three month contract as an engineering operative. The respondent offers these types of contracts to staff as rehabilitation contracts. The understanding on both sides was that after the three months had elapsed, the contract would be reviewed.
2.5. The complainant was originally on day shifts, but suffered another panic attack when he was assigned night shifts and asked to drive buses into the car wash. He was then reassigned to day shifts.
2.6. On 11 March 2014, the complainant was informed by letter from HR that the person for whom he was covering in his engineering contract was returning to work. This was the first time that the complainant became aware that he was covering for another employee. When the complainant made enquiries among his colleagues about this, he learned that there was no one coming back to his position. The complainant further states that a number of colleagues were employed for up to four years under rehabilitation contracts.
2.7. The complainant was assessed again by the respondent’s Chief Medical Officer on 27 June 2014, and deemed unfit for road passenger driving duties. The Chief Medical Officer made a recommendation to the respondent to retire the complainant on grounds of ill-health. The complainant was subsequently retired by the respondent on 31 August 2014.
2.8. The complainant states that he was not involved at all in this decision-making process and was not provided with any right to appeal the decision. He suffered significant earning losses as a result. The complainant contends that all of this amounts to discrimination on the ground of his disability, and is seeking to return to work and is seeking an order of re-instatement, re-engagement or compensation from the respondent.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. In its submission, it essentially confirms the complainant’s submission as far as the complainant’s disability is concerned, and also the fact that the complainant was unable to drive one of its buses without suffering panic attacks, even in the confines of a garage. It states that its Chief Medical Officer continuously sought non-driving duties for the complainant. However, within its operations, it has very few non-driving or non-engineering operative duties. At any given time, there can be between 50 and 70 drivers seeking the type of rehabilitation contract which the complainant was facilitated with in 2013.
3.2. The respondent states that no such position was available for the complainant when it was first sought for him by its own occupational health expert in 2011. It further states that when the complainant was on his rehabilitation contract in 2013, another employee was returning from long-term sick leave. It also states that the named worker, in the complainant’s submission, who was facilitated with a rehabilitation contract for several years, has a disability that is easier to accommodate for the respondent than the complainant’s condition.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the outset of the hearing, the complaint under the Equal Status Acts was withdrawn. Furthermore, no evidence was adduced in terms of discrimination in the provision of training, or in the complainant’s terms and conditions of employment, so these aspects of the complaint must fail.
4.5. At the heart of the remaining dispute between the parties are two questions: Does an employer have responsibilities towards a worker pursuant to S. 16 of the Acts when the worker, who is unable to perform his or her original role due to disability, is facilitated with another role and it transpires that the worker cannot perform this alternative role either, due to the disability? And for how long does an employer need to seek to facilitate a disabled worker before the worker is, as in the case on hand, retired on grounds of ill-health?
4.6. Counsel for the complainant opened three cases in support of her argument: The Equality Tribunal decision Reilly v. United Parcel Service CSTC Ireland Ltd DEC-E2013-077, the Labour Court case Humphries v. A Fitness Club EED037, and the recent High Court decision Nano Nagle School v. Marie Daly [2015] IEHC 785.
4.7. In terms of the first case, which, as it happens, I decided, I am satisfied that it can be quite easily distinguished on the facts from the case on hand. In Reilly, the respondent fell far short of its legal obligation to either obtain full information on the complainant’s injury or it obligation to review its operations to facilitate the complainant with an alternative role. In the case on hand, the complainant was in regular contact with the respondent’s in-house occupational health experts and he was facilitated in various ways.
4.8. Counsel relied on Humphries v. A Fitness Club for her argument that the respondent made insufficient inquiries on how the complainant’s replacement role as an engineering operative could be adapted when it transpired that driving buses even in the confines of the garage gave the complainant panic attacks. It was the respondent’s counterargument that this was already an alternative role to that for which the complainant was originally hired, which was to be a bus driver, and that it ought not to be obliged to adapt such an alternative role as if it were a disabled worker’s original role.
4.9. This argument also encompasses the respondent’s response to the argument derived from the third case, Nano Nagle School v. Marie Daly. In that case, a special needs assistant who became disabled through an accident and became a wheelchair user, was dismissed by the school which employed her. The Labour Court found, and the High Court affirmed, that reasonable accommodation pursuant to an employer’s obligations under S. 16 of the Acts entailed in this case, to restructure her duties as a special needs assistant and to allow her to perform secretarial duties in addition to this.
4.10. The second argument between the parties which arose out of the Nano Nagle case was whether the complainant ought to have been afforded an additional opportunity to make representations to the respondent before his retirement on ill-health grounds was decided, or whether his engagement with the respondent’s CMO, stretching over four years, was sufficient to meet the obligations established by the Labour Court in Humphries. In the Nano Nagle case, the High Court affirmed the test developed by the Labour Court in Humphries v. A Fitness Club. Counsel for the complainant argued that the complainant ought to have had a right to appeal his retirement. The respondent’s solicitor argued that the engagement with the complainant, particularly through its occupational health service, had been very extensive already, and that there were no medical facts in dispute which would have necessitated an appeals process.
4.11. In all of these arguments, I am finding in favour of the respondent, based on the respondent’s uncontroverted evidence. The respondent engaged with the complainant’s health issues and the problem which these posed for his work as a bus driver, for a very long time. The complainant was facilitated with lengthy sick leaves, one lasting for more than a year, without losing his job. He was also facilitated with a lengthy re-training process in the respondent’s bus driving school, which the respondent put in place in the hope that this would enable the complainant to overcome his panic attacks while driving a bus. It was the evidence of the respondent’s human resource manager, which was not disputed and which I accept, that to keep an already trained bus driver in driving school for five months was “virtually unheard of, as raw recruits from the street are in driving school only for eight weeks”.
4.12. Furthermore, the complainant was regularly reviewed by the respondent’s CMO, who sought non-driving duties for him. Eventually, the complainant was facilitated with an alternative role, but it proved impossible for him to drive buses even in the confines of the garage without succumbing to panic attacks. The whole process lasted from 2010 to the summer of 2014. I accept the evidence from the respondent’s HR manager that the company is committed to rehabilitating its staff, but that it is a transport provider and that there needs to be an end to such efforts if no improvement in a worker’s condition is in sight, or else the respondent might have innumerable staff on its books, none of whom able of working in the role they were originally hired for.
4.13. It is settled law by now that workers who become disabled have a right to have their role adapted, so they can continue to perform it, or be facilitated with an alternative role, or, as is the case in the Nano Nagle School case, a mixture of both. But the Employment Equality Acts are silent on any right to the adaptation of such an alternative role, and while this may on occasion be possible and thus be facilitated by an employer in order to keep a valued employee, it would be an onerous burden to impose on employers as a legal duty, with many practical difficulties attached. I am therefore satisfied that the process engaged with by the respondent to assist in the complainant’s rehabilitation fulfils the respondent’s duties pursuant to S. 16 of the Acts and that this part of the complainant’s case must fail.
4.14. In terms of the complainant’s complaint of discriminatory dismissal, I am further satisfied that the process the respondent had in place can easily be distinguished from Humphries, as the respondent in that case resolved to dismiss the complainant without reverting to any medical advice or risk assessment. In the case on hand, a lengthy engagement with the respondent’s CMO preceded the decision to retire the complainant on grounds of ill-health. The complainant panic disorder did not improve and he was unable to drive the respondent’s buses. I am satisfied that this engagement was sufficient and that the complainant had an input in it through the regular appointments with the CMO he attended. The complainant’s health was not within the complainant’s gift to improve beyond the treatments of which he was already availing, so I cannot see what a warning that he might be so retired would have achieved. In other words, I am satisfied – and it is important to note here that at no point in the proceedings did anyone present try to suggest this – that the complainant is not in any way a malingerer whose health might have suddenly and substantially improved when faced with the risk of being retired. In fact, the complainant gave evidence that at the time of the hearing, he was still quite impaired by his mental health difficulties.
4.15. Accordingly, as the respondent’s solicitor pointed out, and I accept, that this was not a case where there were two conflicting medical opinions, or where the complainant asserted that he was fit to resume his role as a driver. I agree that such a scenario would have been different in terms of the process to be followed by an employer. In the case on hand, I am satisfied that after a lengthy process, the respondent was entitled to form a bona fide belief that the complainant would be unable to resume the duties he was hired for, and therefore retire him on the grounds of ill-health. Therefore this part of the complainant’s case must also fail.
5. Decision
5.1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the respondent did not discriminate against the complainant on the ground of his disability, that the respondent did discharge its duties to provide reasonable accommodation for the complainant pursuant to S. 16 of the Acts, and that the respondent did not discriminatorily dismiss the complainant when it eventually decided to retire the complainant on the grounds of ill-health.
______________________
Stephen Bonnlander
Equality Officer
24 May 2016