EDA171

The Complainant submitted a complaint to the Equality Tribunal on 8 January 2015 alleging that the Respondent had discriminated against him on the Disability Grounds contrary to section 6(2)(g) of the Act.

On 24 May 2016 the Equality Officer decided as follows

“Based on all 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 S16 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.”

The Complainant appealed against that decision to this Court on 8 June 2016. The case came on for hearing before the Court on 15 November 2016.

Background

The Complainant commenced employment with a transport company as a Bus Driver in or around January 2006. On August 17 2010 the complainant suffered a ruptured tendon when he applied the brakes to the bus he was driving. As a result of the injury he suffered he was unable to carry out his duties as a bus driver. Following that incident he suffered panic attacks and agoraphobia. He subsequently found it difficult to return to work as a Bus Driver. He was certified fit by the Respondent’s Chief Medical Officer to return to duty as a Bus Driver via the driver training school in early December 2010. He returned to work as a Bus Driver for a very brief period in March 2011. He undertook driving duties for 3 to 4 days but suffered a recurrence of the panic attacks he had experienced. He was unfit to undertake driving duties at that time and he returned to the driver training school until May 2011 when he again became unfit for driving duties and went on sick leave again.

The Complainant was subsequently out of work from May 2011 until December 2013. During the period of absence he continually attended the Chief Medical Officer as required and sought accommodation in alternative employment within the Company. The Company kept his situation under review and explored alternative employment options for him. However the Company during the period 2009 to 2013 was undertaking major retrenchment and downsizing programmes arising out of the financial crisis faced by the state that resulted in a drop in demand and revenue for road passenger transport services. This made it difficult to find alternative roles for bus drivers who could not undertake driving duties. However the Respondent occasionally had openings for redeployment and one such temporary opportunity arose in December 2013.

The Complainant returned to work on a three month contract fulfilling the role of an engineering operative. The duties associated with this post include shunting buses around the garage and driving them into the Bus Wash each night in order to have them ready for service the following morning. The Complainant was assigned to this duty on nights. He suffered further panic attacks. He maintained that he was unable to drive the buses without suffering a panic attack.

The Engineering Operative vacancy to which the Complainant was appointed arose as a consequence of another employee’s absence due to long term illness. The Respondent informed the Complainant on 11 March 2014 that the temporary assignment would end.

In the interim the Complainant attended his GP on the 13 February 2014 who issued him with a medical certificate in the following terms

“The above male had panic attacks when shunting buses. In my opinion he is unfit to drive buses”.

On receipt of this medical certificate the Respondent removed the Complainant from driving duties and assigned him to non-driving duties for the balance of the temporary contract. When that contract ended there was no other position available for him and as he was not certified fit for road passenger driving duties he again went on sick leave.

From this time onwards he received no sick pay from the Respondent.

He attended the Chief Medical Officer’s Department on 27 June for an assessment of his capacity to work. It wrote to management in the following terms

• “Mr P attended the Medical Department on 27^thJune 2014. He remains unfit for Road Passenger driving duties. Yours of 19.06.2014 refers.

  In the absence of any alternate non driving duties it is recommended that Mr P be retired on grounds of ill health, with effect from 31^stAugust 2014.”

• “I wish to advise that there are no alternative duties available to Mr P at this time.”

• “You had a review with the Chief Medical Officer on the 27^thJune 2014 and he has recommended your retirement on health grounds effective from the 31^stAugust 2014.

  Under the Welfare Scheme you are entitled to a tax free ex-gratia lump sum of €4992.88 and as you have accrued pension arrears of €3789.75 this will be deducted from your lump sum leaving you with a net lump sum of €1203.13. This cheque will be forwarded to you on or after the 31^stAugust 2014.

  Your pension options and the P45 will be forwarded to you by post.

  If you have any further queries please do not hesitate to contact”

The Complainant was at that point retired on ill health grounds.

Position of the Parties

The Complainant submits that he suffers from a disability within the meaning of the Act. He submits that the disability rendered him incapable of driving road passenger buses but that he was capable of discharging other duties including bus driving duties within a “Bus Garage” under certain conditions. He submits that the nature of his disability together with his family circumstances rendered him incapable of sleeping properly for a period of time. However he submits that those circumstances ceased to exist in 2014 and that he was capable of undertaking the full duties of an Engineering Operative which included driving buses or shunting buses in a garage setting. He submits that he should and could have been accommodated with such work. He submits that other individuals whom he named to the Court had been so accommodated. He submits that he would not have been dismissed from his employment had he not suffered from a disability. He further submits that the Respondent failed to afford him reasonable accommodation in terms of work allocation or permitting him to remain on unpaid sick leave pending suitable work becoming available, so as to allow him remain in the workforce while suffering from a disability. He submits that these actions by the Respondent amount to breaches of his employment rights as a person suffering from a disability and have had the effect of removing him from the workforce on account of his disability.

The Respondent submits that it has gone to great lengths to accommodate the Complainant and his disability. It submits that he was employed to undertake road passenger bus driving duties. It submits that when he suffered a physical injury while at work it accommodated him with payment from its sick pay scheme while he was unable to work. It further submits that when he suffered panic attacks on his return to work it again accommodated him with extended custom designed training in the Training School. It further submits that when he could not return to road passenger duties he again availed of the sick pay scheme while it searched for suitable alternative employment opportunities within the broader company. It submits that it identified one such temporary opportunity and offered it to the Complainant. It submits that when he was unfit to drive buses at night within a “garage setting” in that position it again accommodated him with alternative duties until that contract came to an end. It submits that it was going through a retrenchment period and that alternative duties were not plentiful. However it kept him under constant review to determine what duties he could undertake with a view to finding alternative employment for him. It submits that its Medical Department continuously engaged with the Complainant to assess his capacity to work and that it finally decided that he was not capable of driving a bus and that as there were no alternative duties available for him he should be retired on ill health grounds. It submits that it had gone to great lengths to accommodate the Complainant but that it eventually had no other option but to retire him on ill health grounds.

The Law

Section 6 (2)(g) of the Act states

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds insubsection (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

(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”),

Section 8 of the Act in relevant part states

.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

”Section 16 of the Employment Equality Act 1998, as amended, provides as follows:

• (1) 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.

  (2) In relation to—

  (a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

  (b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

  (c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

  subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

  (3)

  (a) For the purposes of this section, 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.

  (b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

  • 
    i. To have access to employment

    ii. To participate and advance in employment,

    iii. To undergo training,

  
  Unless the measures would impose a disproportionate burden on the employer.

  (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

  (i) The financial and other costs entailed.

  (ii) The scale and financial resources of the employer’s business and

  (iii) The possibility of obtaining public funding or other assistance.

  (4) In subsection (3)—

  “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12 (1) and a regulatory body; and accordingly references to a person who has a disability include—

  (a) such a person who is seeking or using any service provided by the employment agency,

  (b) such a person who is participating in any such course or facility as referred to in paragraphs (a) to (c) of section 12 (1), and

  (c) such a person who is a member of or is seeking membership of the regulatory body;

  ‘appropriate measures’, in relation to a person with a disability—

  (a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

  (b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

  (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”

• “Reasonable accommodation for disabled persons

  In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

  (17) This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities…

  (20) Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

  (21) To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.”

In EED037 A Health and Fitness Club and A Worker the Court set out the procedure to be followed in determining whether and to what extent, an employer can rely on section 16 of the Act. It stated

• • “This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground 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. “

This section of the Act and the procedure adopted by the Labour Court in that case was commented upon by Noonan J in Nano Nagle School v Daly[2015] IEHC 785 where he stated

59. At first blush, a literal interpretation of s.16 (1) (b) considered on its own appears to support the position adopted, initially at least, by the school. However, when read in conjunction with s. 16 (3) and (4) insofar as they apply to this case, it is clear that a person with a disability is, for the purposes of the Act, to be regarded as fully competent to undertake and fully capable of undertaking the duties of a given job if such person would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer. As held by the CJEU inRing, the adaptation of patterns of working time must include the elimination of some of that working time, subject always to the caveat that the measures must not impose a disproportionate burden on the employer. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted.

60. In consideringRing, the Labour Court concluded that by parity of reasoning it is also for the national court to assess if a redistribution of tasks represents a disproportionate burden on the facts of a particular case in which that question arises. I can find no fault with that logic. The adaptation of the distribution of tasks must in an appropriate case include a consideration of whether a reduction of those tasks may be necessary in order to comply with s. 16. Indeed the school has acknowledged as much in conceding that it may be necessary to strip out some peripheral tasks from the job. Of course whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that which originally existed. Some of the English authorities appear to go as far as suggesting that under the equivalent, and admittedly different, English legislation which pre-dates the Directive, the requirement to reasonably accommodate a disabled employee may extend to transferring him or her to an entirely different position within the same organisation – seeArchibald v. Fife Council[2004] UKHL 32 andChief Constable of South Yorkshire Police v. Jelic[2010] IRLR 774.

61. While the school in its submissions criticises what it submits are various errors of law in the Labour Court’s interpretation of the national and European case law, even if same were made, which I do not determine, these do not appear to me to undermine the ultimate outcome. The fundamental determination of the Labour Court here was that the school failed to engage with its duty to consider whether or not Ms. Daly could reasonably be accommodated by the implementation of appropriate measures. The Labour Court did not conclude that Ms. Daly could be so accommodated but rather it was the failure to even consider a redistribution of her tasks as a SNA that rendered the school in breach of s. 16. It seems to me that on the evidence, the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate consideration or evaluation of these issues by the school and a phone call to the NCSE about funding, the content of which was never precisely determined, was an insufficient effort on the part of the school to comply with its statutory obligation.

62. These are all conclusions which in my view were open to the Labour Court on the evidence and it could not in any realistic sense be suggested that these were irrational or based on an erroneous interpretation of the law.

Discussion

In this case the parties are in agreement that the Complainant suffered from a disability that rendered him incapable of discharging the full duties of the post for which he was employed. Indeed the Complainant was employed as a road passenger driver and he submitted certificates from his own medical advisor that stated that he was not fit to drive. Accordingly the complainant was not fit to undertake the full range of duties of the post.

The question then arises as to whether, with reasonable accommodation he could undertake those duties for it is clear that were that to be the case he would be deemed fully competent to undertake the duties of the post. However were the cost of such accommodations to impose an excessive cost burden on the Company it would not be required to incur that cost.

All such decisions must turn on the facts of the individual case. However the Court has set out a procedure in EED037 to be followed by employers seeking to rely on section 16 of the Act. The purpose of that procedure is to ensure that reasonable consideration has been given to an employee’s disability so as to ensure that an honest determination has been made as to whether aspects of the job can, without excessive cost, be revised or restructured to accommodate the disability and allow the person remain in the workforce. Where such an exercise has not been carried out there is a heavy burden on the Employer to adduce evidence to show that an honest assessment has been arrived at in that case.

The Court has, in setting out the procedure to be followed, also stated that the involvement of the person with the disability in the decision making process is a fundamental requirement of natural justice and fairness. A failure to consult with an employee in a manner that enables him or her to explain their abilities and the extent to which they can continue at work before a decision is made would undermine any contention that reasonable accommodation options were considered.

In this case the Complainant told the Company that he could not drive road passenger vehicles on the public highway. His medical advisor, on 13 February 2014, certified him unfit to drive buses, without any further qualification. The Chief Medical Officer assessed the Complainant on 27 June 2014 some four months after his doctor certified him unfit to drive buses. On the basis of that assessment Mr D retired the Complainant by letter dated 21 July 2014. The retirement took effect on 31 August 2014.

A number of issues arise. Firstly the Chief Medical Officer did not assess the Complainant’s capacity to work. S/He simply assessed his fitness to undertake “Road Passenger driving duties”. He had already been advised by Mr D on 19 June 2014 that there were no alternative non driving duties available and on that basis recommended retirement on ill health grounds.

Mr D seeks to rely on that memo to justify his decision to retire the Complainant. However Mr D had himself decided that there were no alternative duties available without engaging in any discussion with the complainant regarding his disability or his abilities. He told the Court in evidence that his most recent meeting with the Complainant had taken place in 2011. Indeed he told the Court that he had not personally reviewed any of the medical evidence or reviewed any of the available alternative jobs or duties that were or might have been available. He told the Court that someone else “would have” so surveyed the available options. However he could not identify who that person was or what they actually surveyed.

Furthermore there was no evidence before the Court that the person who purportedly undertook that survey had engaged with the Complainant regarding his disability. Accordingly there was no evidence before the Court that the survey that was undertaken was in any way informed by the Complainant’s capacity. Furthermore it is evident that the Complainant was not consulted in any way by any of the decision makers regarding his disability and or how it affected his capacity to undertake work of any type or variety.

It is also clear that Mr D, when making the decision to retire the Complainant, was unaware of the prognosis for the Complainant’s medical condition. The report from the CMO makes no reference to a prognosis. It merely states that the Complainant “remains unfit for Road Passenger driving duties”. Mr D told the Court that he relied on that report and confirmed that he did not investigate the matter further.

Mr D also told the Court that he did not consult with the Complainant before he made the decision to retire him. He told the Court that he did not put the CMO’s report to him for comment. Nor did he invite him to obtain an up to date medical certificate from his doctor advising him of his current condition and or its likely progress. Nor did he advise the Complainant that his employment might be at risk and he might want to be represented and to make submissions to him before he made a final decision. Instead he simply told the CMO that there were no alternate non driving duties available and in response was told that as the Complainant remained unfit for driving duties he should be retired on ill health grounds.

The Court finds that this procedure is fundamentally flawed. It excludes the Complainant from any involvement in the assessment of his capacity to undertake his duties, it deprives the Complainant of an opportunity to influence either the medical and or management decision that affects his livelihood, it fails to properly separate the role of the CMO from that of the employment decision maker and it fails to notify the Complainant of the grave threat to his employment and alert him to the need to be properly advised and represented before a decision to end his employment is taken.

In those circumstances the Court finds that the Respondent did not have procedures in place that put it in a position to take a bone fide decision regarding the Complainant’s capacity to remain at work, it failed to determine whether with reasonable accommodation he could continue in employment, it failed to seek any information on the Complainant’s medical prognosis and because of his disability it failed to afford him reasonable opportunity to influence the decision to retire him.

The Court raised with the parties the question of whether the Respondent was an emanation of the state for the purposes of the application of the Directive and if so what effect this would have on its obligations in law. Both parties submitted very helpful and informative submissions on these points. However, in the event, the Court decided the case on its facts and did not find it necessary in deciding the matter before it to make any decision on whether the Dublin transport company is an emanation of the state and if so to determine how such a status would affect the Court in deciding the matter.

Accordingly the Court determines as follows in this case.

In all of the circumstances the Court on the facts of the case before it finds that the Complaint is well founded and sets aside the decision of the Equality Officer.

Determination

The Court finds the Complaint well founded, sets aside the decision of the Equality Officer and orders the Respondent to pay the Complainant compensation in the sum of €10,000 for the infringement of his rights under the Act. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
25th January, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.