DEC–E2017-005

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-005

PARTIES

A Complainant

(represented by Ms. Devina Brady B.L. on the instructions

of Coonan Cawley Solicitors)

v

A Bus Operator

File References: et-159572-ee-15 and

et-159100-ee-15

Date of Issue: 23rd January, 2017

1. Dispute

1.1 This case concerns a complaint by the Complainant that he was discriminated against by the Respondent on the grounds of disability contrary to Section 6(2)(g) of the Employment Equality Acts in relation to his conditions of employment and in terms of a failure to provide reasonable accommodation in accordance with the provisions of Section 16(3) of the Acts.

2. Background

2.1 The Complainant referred two separate complaints under the Employment Equality Acts to the Director of the Equality Tribunal on 28th August, 2015 (Case Ref: et-159100-ee-15) and 11th September, 2015 (Case Ref: et-159572-ee-15). In accordance with his powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 8th November, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 24th June, 2016 and from the Respondent on 10th November, 2016. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th December, 2016.

2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2.3 The Complainant’s representative confirmed at the oral hearing that Case Ref: et-159100-ee-15 was being withdrawn as this was a duplicate complaint.

3. Summary of the Complainant’s case

3.1 The Complainant commenced employment with the Respondent as an Engineering Operative (also called a “Shunter”) on 3 June, 1995. The Complainant left his employment with the Respondent in January, 2000 to undertake an apprenticeship and was ultimately re-employed by the Respondent on 13 May, 2000. The Complainant has carried out the same role since his commencement with the Respondent. Since that time, the Complainant has worked night shifts. His role involves preparing buses overnight for use the following day. The Complainant works eight-hour shifts, which involves driving buses internally on the Respondent’s premises for approximately two to three hours. The remaining five to six hours of his shift did not require him to drive a bus.

3.2 The Complainant sustained an eye injury (i.e. a detached retina) in July, 2014 and following surgery was diagnosed by the Respondent’s Chief Medical Officer (hereinafter referred to as the “CMO”) as being unfit for work until after he underwent further surgery. The Respondent wrote to the Complainant on 24 November, 2014 and informed him that he would no longer receive sickness benefit as of 16 December, 2014. The Complainant underwent a second operation to his eye on 30 January, 2015 following which he was advised that although his eye had healed well, he had suffered partial sight loss which might be long term. The Complainant attended the Respondent’s CMO on 17 February, 2015 and was informed that he was unfit to drive. The CMO subsequently wrote to the Respondent to that effect and sought advice in respect of whether any alternative driving duties could be made available for the Complainant.

3.3 The Respondent wrote to the CMO on 4 March, 2015 and indicated that there were General Engineering Operative duties which might become available in the foreseeable future which did not involve driving. The Respondent noted that there were general safety concerns associated with working in a garage environment and asked the CMO whether the Complainant would be fit to work in such an environment. The CMO responded on 25 March, 2015 and indicated that the Complainant was fit for these General Engineering Operative duties and noted that his medical condition was not expected to impair his hand and eye coordination. However, the Respondent subsequently contacted the CMO on 10 April, 2015 stating that this position was no longer available.

3.4 The Complainant submitted that the Respondent wrote to him on 28 April, 2015 stating that the CMO had deemed him unfit for the full range of duties of his grade but accepted that he would be fit for non-driving duties. This letter further stated that the Respondent did not have any alternative work available for him at that time but noted that should an appropriate role become available he would be contacted. The Complainant was contacted by the Garage Manager on 29 April, 2015 and informed that another employee (Mr. A) was expected to retire in June, 2015 and that the Complainant could take over that role which involved cleaning duties at the depot. The Complainant submitted that Mr. A had poor eyesight and was facilitated by the Respondent in giving him this role. However, it subsequently transpired that Mr. A decided to postpone his retirement until June, 2016 and that as a result the offer of this role was withdrawn. The Complainant submitted that another employee (Mr. B) was also facilitated by the Respondent with alternative duties as a cleaner when he was unable to continue to perform driving duties due to poor eyesight.

3.5 The Complainant submitted that he has been certified medically fit to return to work, albeit that he is unable to perform driving duties. However, he claims that the Respondent has refused to find a suitable alternative role for him but rather has maintained the position that he is unfit for the full range of duties of his grade and that there are no non-driving roles available for him. The Complainant submitted that he had further contact with the Respondent (through both his Trade Union and legal representatives) during the period between July, 2015 and September, 2015 in order to try and facilitate his return to work in a role that did not involve the requirement to drive. The complainant submitted that the Respondent made an offer on 21 September, 2015 of a temporary relief position involving administrative/clerical duties. The Complainant submitted that he is a full-time carer for his elderly parents and has worked night shifts since commencing employment with the Respondent. This allows him to care for his parents during the daytime and work at nighttime. The Complainant submitted that the alternative position offered by the Respondent was untenable as he is unavailable to work during daytime hours.

3.6 The Complainant submitted that as a direct result of his disability, he is not being permitted to return to work as he is unable to carry out one specific task (namely driving duties) which constitutes less than one quarter of his duties. The Complainant submitted that he has been certified medically fit to return to work but the Respondent has failed to reasonably accommodate him with alternative non-driving related duties. The Complainant submitted that it is unclear whether the Respondent has carried out a detailed report in respect of his position or considered whether he could be accommodated in another role. The Complainant claims that the Respondent could make arrangements to ensure some other Engineering Operative undertakes the small percentage of driving duties required with his role which would leave him in a position to undertake the duties central to his role. The Complainant submitted that the Respondent has accommodated two other employees with disabilities, who were employed in similar roles to him, with alternative duties. However, the Complainant claims that the Respondent has failed to take proactive measures to accommodate him in the same way.

3.7 In summary, the Complainant claims that the Respondent has subjected him to discrimination on the grounds of his disability and has failed to provide him with reasonable accommodation contrary to Section 16 of the Acts in terms of facilitating his return to work. The Respondent referred to the cases of A Computer Component Co. –v- A Worker[1], A Worker –v- A Health and Fitness Club[2], An Employer –v- A Worker[3] and The Department of Justice –v- Kavanagh[4] in support of its position in relation to this matter.

4. Summary of the Respondent’s case

4.1 The Respondent submitted that the Complainant has been employed as an Engineering Operative on a continuous basis since May, 2000. He had previously been employed by the Respondent during the period from June, 1995 to January, 2000 when he left his employment to undertake an apprenticeship. The Complainant reported on sick absence from work on 5 August, 2014 as a result of having sustained an eye injury. Following an examination by the Respondent’s CMO in September, 2014, the Complainant was deemed unfit for duty as a result of this eye injury. The Respondent submitted that the Complainant was further reviewed by the CMO in December, 2014 and February, 2015 who advised that he was not to resume duty without prior clearance and that he had a long term medical restriction problem.

4.2 The Respondent submitted that the CMO also advised at that juncture that the Complainant remained unfit to drive on public roads or in a garage environment and asked if there were any non-driving duties available for him. The Respondent’s Regional Manager advised the CMO on 10April, 2015 that there were no non-driving duties available at that time. The Respondent wrote to the Complainant on 28 April, 2015 and advised him of the CMO’s medical report and informed him that there were no non-driving duties available at that particular juncture. The Respondent also informed the Complainant that if such duties became available he would be notified and a further appointment with the CMO would be arranged. The Respondent submitted that the Complainant contacted the Respondent’s Regional Personnel Manager on 12 May, 2015 and requested redundancy. The Respondent advised the Complainant that he had been certified medically unfit for work by the CMO and that there was no redundancy situation.

4.3 The Respondent submitted that the Complainant continues to be certified medically unfit to perform the full range of duties for his grade by the CMO. The Respondent disputes the Complainant’s contention that driving duties are less than one quarter of his overall duties. The Respondent submitted that driving duties represent approx. fifty per cent of the Complainant’s overall duties and that he is no longer capable of performing this part of his role as a result of his disability. The Respondent submitted that all garage staff including Engineering Operatives (i.e. the Complainant’s grade) are required to hold a driving licence (Category D Bus licence). However, the medical requirements to hold such a licence exclude most disabilities including the Complainant’s disability. The Respondent submitted that it would not be possible to restructure the Complainant’s job by removing the driving requirements from the role as this would render the operation of the night shift (which the Complainant had worked) untenable. The Respondent submitted that there is a total of five Engineering Operatives available to work the night shift with three of the five required to be rostered on any given shift. However, one of these workers has already been accommodated with non-driving duties due to his inability to obtain a driving licence as a result of poor eyesight. The Respondent claims that it would be untenable and an unworkable situation if two out of the five Engineering Operatives were unable to perform driving duties on the night shift.

4.4 The Respondent submitted that it has actively engaged with the Complainant and his representatives (both Legal and Trade Union) to try and facilitate his return to work in an alternative position. In this regard, the Complainant was offered an alternative temporary relief position of a clerical/administrative nature in the post room on 21 September, 2015 but he declined this offer as he is not available to work daytime hours. The Respondent submitted that the Complainant’s situation is under constant review and that he will be offered alternative duties that do not involve driving duties should such a position become available in the future. The Respondent submitted that the task of finding an alternative role for the Complainant has been made more difficult by the fact that he is not available for daytime work. However, there is currently no such suitable position available for the Complainant. The Respondent submitted that it has over many years dealt with similar type situations involving staff and has in most cases been able to accommodate employees in temporary alternative roles albeit on a limited and infrequent basis.

4.5 In summary, the Respondent denies that it has subjected the complainant to discrimination on the grounds of disability or that it has failed to reasonably accommodate the Complainant as a person with a disability contrary to Section 16 of the Employment Equality Acts.

5. Conclusions and Findings of the Equality Officer/Adjudication Officer

5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

5.2 In the case of Melbury Developments v Arturs Valpetters[5] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

5.3 Section 6(1) of the Employment Equality 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)…..”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability". It was accepted by both parties that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint and I concur with that view. Accordingly, the issues for decision in this case are (1) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts and (2) whether he was discriminated against by the Respondent in relation to his conditions of employment on the grounds of disability. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Reasonable Accommodation

5.4 The first element of the complaint which I am required to consider relates to the claim that the Respondent failed to provide the Complainant with reasonable accommodation in terms of facilitating his return to work following a period of sick absence as a result of an eye injury. Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of Section 16(3)(b) of the Acts which provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if s/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

5.5 On a practical basis, Section 16 of the Acts as interpreted in the case of A Health and Fitness Club -v- A Worker[6] upheld by the Circuit Court (Humphreys v Westwood Fitness Club[7]), requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision”. The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel[8] as: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”. In An Employer -v- A Worker[9], the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

5.6 In the case of Marie Daly –v- Nano Nagle School[10] the High Court recently reaffirmed the consistent construction of Section 16 of the Acts by the Labour Court and its interpretation of the scope of the obligation required by Section 16 on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Acts. In this case the High Court noted that reasonable accommodation extended to altering the hours of work and the distribution of tasks, provided it did not impose a disproportionate burden on the employer. It was further noted that this included a reduction of the particular tasks required of the employee.

5.7 In the present case, the Complainant has been absent from work on sick leave since August, 2014 after sustaining an eye related disability. It was not is dispute that this disability has resulted in the Complainant being certified medically unfit to carry out the full range of duties (i.e. the driving duties) relevant to his role as an Engineering Operative. However, the Complainant contends that he is available to return to work and is fully capable of carrying out tasks which do not involve driving but the Respondent has failed to take reasonable measures to try and facilitate his return to work. I have carefully considered all of the evidence in the context of the requisite two-stage enquiry. On balance, I am satisfied that the Respondent has discharged its obligations under Section 16(3) of the Acts and that it has not failed in its obligation to provide reasonable accommodation to the Complainant as a person with a disability. Having regard to the evidence adduced, I am satisfied that the Respondent cannot currently accommodate the Complainant with a return to work in his current role, and furthermore, that it has made reasonable attempts to accommodate him in an alternative role which does not involve driving duties.

5.8 In reaching this conclusion, I have taken into consideration the following factors:

· I note that the Complainant has attended the Respondent’s CMO for regular periodical assessments in relation to his medical condition and fitness to return to work since he sustained the eye injury. I am satisfied that the Respondent has been in regular contact with both the CMO and the Complainant throughout the duration of his sick absence and has been kept fully updated in relation to his medical condition. The Complainant’s medical assessments are not disputed between the parties and it is accepted that the Complainant has been certified unfit to carry out driving duties but would be fit to carry out non-driving related duties. Therefore, in terms of satisfying the first stage of the requisite two-stage enquiry it is clear that the respondent has embarked upon a process of consultation with both the complainant and its medical consultants from the time that the Complainant sustained the eye injury.

· It was not in dispute between the parties that the Complainant’s existing role currently remains available in the event that he is certified medically fit to resume the full ambit of his duties (including the driving related duties). However, based on the current medical prognosis of the Complainant’s condition it is not clear if, or indeed, when his eyesight will improve in the future to the extent that would allow him to resume the entirety of the role (including the driving related duties) that he performed prior to going absent on sick leave after sustaining an eye injury in July, 2014.

· The Complainant has claimed that he is available for work and has argued that the Respondent, in terms of satisfying its obligations under Section 16 of the Acts, is obliged to restructure his present role by removing the driving related duties in order to facilitate his return to work. This is the key area of contention between the parties in terms of putting suitable measures in place to accommodate the complainant’s return to work. In assessing the reasonableness of such an option, I note that there was a dispute between the parties in relation to the overall level of driving duties required to carry out the complainant’s role and whether or not it was possible to restructure the role by eliminating or redistributing the driving duties. The complainant, on the one hand, claims that driving duties are not a central duty and account for approx. twenty five per cent of the role whereas the Respondent contends that these duties account for fifty per cent of the role. On balance, I have found the Respondent’s evidence on this matter to be more compelling and I prefer the evidence adduced by the Respondent’s Regional Engineer that the driving related duties account for approx. fifty per cent of the complainant’s overall duties.

· The Respondent accepts that it is currently facilitating another of its Engineering Operatives (Mr. B) with alternative non-driving related duties as a result of his inability to drive due to eye impairment. This raises the question as to whether it would amount to a disproportionate burden on the respondent in terms of its obligations under Section 16 to put a similar arrangement in place for the complainant. The respondent gave evidence that there are five Engineering Operatives (including Mr. B) available to work the night shift and that it is necessary to have three of the five rostered on any given shift. I accept the respondent’s evidence that it has afforded consideration to the possibility of restructuring the complainant’s job by removing the driving duties but has concluded that that it would be an untenable situation for operational reasons to have two of the five Engineering Operatives available for night shift duties that are unable to carry out driving duties. Having regard to the evidence adduced, I am satisfied that the reorganization of the complainant’s role by the redistribution or removal of the driving related duties is not feasible in the present circumstances and would result in a disproportionate burden on the respondent in terms of trying to provide reasonable accommodation for the complainant.

· I am also satisfied that the Respondent has actively engaged with the Complainant on an ongoing basis throughout the duration of his absence in terms of trying to find an alternative role for him within the organization that would not involve driving duties. In this regard, I note that the Respondent had considerable engagement with the Complainant’s Trade Union and that following a meeting between the parties on 21st September, 2015 the Complainant was offered a six week clerical placement as temporary cover on a day shift. This offer was without prejudice to the Complainant’s existing position which would remain available subject to his return to full fitness. However, the Complainant refused this offer on the basis that he was not available to work daytime shifts because of his personal commitments to care for his elderly parents during the day. The complainant also confirmed that he is not in a position to consider any other offer of an alternative role which would involve daytime work due to his personal circumstances.

· Whilst I can empathize with the Complainant in relation to his personal circumstances in this regard it is clear that his unavailability to work daytime shifts has put the Respondent at a considerable disadvantage in terms of trying to source an alternative position for him. In this regard, I am satisfied that the respondent has explored all reasonable options in terms of finding a suitable alternative position for the complainant that does not involve driving duties. However, Ì accept the respondent’s evidence that no such position has become available during the material time. I also note the respondent’s undertaking that it will continue to review the complainant’s situation with a view to accommodating him with an alternative role should a suitable position arise in the future.

5.9 Having regard to the foregoing, I am satisfied that the respondent has not failed to provide reasonable accommodation within the meaning of Section 16(3) of the Acts to the complainant as a person with a disability.

5.10 Finally, and again for the reasons set out above, there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of disability in relation to his conditions of employment. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of disability in relation to his conditions of employment.

Attendance of Witnesses at the Hearing

5.11 Prior to the oral hearing, the Complainant’s legal representative requested the attendance of two witnesses at the oral hearing (i.e. Mr. A and Mr. B – respectively being a current and a former employee of the respondent’s) to give evidence in relation to the accommodations which it was claimed the Respondent has afforded to these persons on account of their respective disabilities in terms of allocating them with alternative duties. Having considered this request, I decided to invoke my powers under Section 95 of the Employment Equality Acts and I wrote to both of these individuals and informed them of the requirement to attend the hearing on the basis that they may have information which was relevant to my investigation. I am satisfied that the notification to attend the hearing was served on both persons. However, neither of these persons subsequently attended the oral hearing on the date in question. In the circumstances, I informed both parties at the oral hearing that I would proceed to hear the evidence and reconvene at a later date, if necessary, in the event that I deemed it necessary to hear evidence from Mr. A and Mr. B in order to complete my investigation and to make a decision in relation to the present complaint. Having heard the evidence from both parties, it subsequently transpired that there was no dispute between the parties regarding the nature of the accommodations which the Respondent has afforded to both Mr. A and Mr. B in terms of allocating them alternative work to accommodate their respective disabilities/medical conditions. I am therefore satisfied that it was not necessary for me to hear oral evidence from either of these witnesses in terms of completing my investigation and/or facilitating my deliberations in relation to the present complaints.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:

(i) The Complainant has failed to establish a prima facie case that as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide him with reasonable accommodation contrary to Section 16(3) of the Acts and therefore this complaint is not upheld; and

(ii) The Complainant has failed to establish a prima facie case of discrimination by the Respondent on the grounds of disability in relation to his conditions of employment and training contrary to Section 6(2)(g) and Section 8 of the Acts and therefore this complaint is not upheld.

______________

Enda Murphy

Equality Officer/Adjudication Officer

23rd January, 2017

Footnotes

[1] EED013

[2] EED037

[3] EDA0413

[4] [2012] 23 ELR 34

[5] EDA0917

[6] EED037

[7] [2004] E.L.R 296

[8] EDA0721

[9] EDA0413

[10] [2015] IEHC 785