EDA1716

The Appellant is the national railway operator in the state. It employed the Complainant as a Railway Crossing Keeper in 2004. He continued in that role until he fell ill in January 2015 as a consequence of which he was unable to attend at work for a period of time. He was referred to the Respondent’s medical advisors for an assessment of his medical condition and its effect on his capacity to work.

In the engagement that followed the Complainant disclosed that he had since 1997suffered from a neurological condition namely epilepsey which was being managed with medication by his General Practitioner. He also disclosed that he had not had a seizure since 2001.

As a result of that disclosure the Respondent’s medical advisors advised it that the Complainant could not be cleared to work in a safety critical role including the role in the Company for which he had been employed. The medical department also advised the Respondent that they would not have cleared him for employment in 2004 had he disclosed and not concealed his medical condition on his application form. It did however clear him to work in the Company in a role that was not safety critical.

The Respondent has a policy of seeking to accommodate staff who develop a disability while at work. That policy involves a company-wide search for a suitable role into which it might redeploy such an employee. The Respondent activated that policy in this case but due to the restricted nature of the roles for which the Complainant was medically cleared and the general contraction that had occurred in the Company it could not identify any suitable positions for the Complainant.

As a consequence the Respondent placed the Complainant on ill health retirement under the terms of its superannuation scheme.

The Complainant submitted a complaint to the Workplace Relations Commission in which he contended that the Respondent had failed to provide him with reasonable accommodation so as to remain at work while suffering from a disability.

Having heard the parties in relation to the complaint the Adjudication Officer decided on 22 July 2016 in relevant part as follows

• • In conclusion, taking all of the above and all the evidence adduced both written and oral, into consideration, I am satisfied that the Complainant is currently out of work because of his disability. I am also satisfied that, notwithstanding the obvious challenges being experienced by the Respondent in its efforts to accommodate the Complainant, the evidence suggests that the Respondent has not fully complied with the responsibilities placed on it by the Equality legislation to accommodate the Complainant in this case. I am also satisfied that the Respondent has allowed this matter to proceed to, and remain at, impasse, without applying the attention and/or focus necessary to bring about resolution or closure.
    

    Therefore, I find in favour of the Complainant and, in line with Section 82 (1) (e) and (c) respectively, determine that:

    (a) the Complainant should be returned to the Respondent's payroll with effect from the date of this determination for a period of six months. During this period and without prejudices to the positions/expectations of either party, the Respondent should engage in direct and meaningful discussion with the Complainant and his trade union representatives in an effort to arrive at a reasonable, sustainable and definitive resolution of the matter by the conclusion of this period. The effect of the resolution should be to ensure that the current stalemate which exists in the Complainant's working relationship with the Respondent does not continue after the six month period.

    and

    (b) the Complainant should receive an amount of €15,000, in compensation for the effects of the act of discrimination.

Position of the Parties

The Complainant submits that he suffers from a disability within the meaning of the Act and that the respondent failed, contrary to section 16(3)(b) of the Act, to provide him with reasonable accommodation so as to enable him to continue in employment.

He further submits that his terms and condition of employment include an equality policy that is operated by the Respondent that obliges it to accommodate him in his existing post by reordering, restructuring or redesigning the duties he is required to perform to remain in that post or to seek for him alternative employment within the company. He submits that it failed to meet these obligations. In failing to do so he submits that the Respondent, because of his disability, denied him terms and condition of employment equivalent to those of other members of staff. He submits that this amounts to discriminatory treatment within the meaning of section 8(1) of the Act.

Finally he submits that the Respondent treated two named members of staff who suffered from a different disability, in a more favourable manner than the manner in which it treated him. He submits that in doing so it infringed his rights under section 6(2)(g) of the Act.

The Respondent submits that the Complainant misled it as to his disability on two occasions. In 2004 when he applied for the position he denied suffering from epilepsy or of ever having lost consciousness. In 2009 he again repeated similar denials.

It submits that had he disclosed these disabilities he would not have been cleared for employment in the safety critical role for which he had applied. It submits that having withheld information on two occasions regarding his disability he cannot now seek to rely on that concealed disability to compel the Respondent to accommodate him or to find him alternative employment now that the disability has been belatedly disclosed to the Company. It submits that it is an absurdity for the complainant to conceal information on his original application form and subsequently claim a breach of equality legislation .

It submits that by so misleading it as to his disability he had placed the safety of the travelling public, other members of staff and the rail infrastructure network at serious risk some of which were of life threatening proportions.

It submits that in denying him permission to return to the safety critical role for which he had been employed it was acting in accordance with the best medical advice available to it and in accordance with international practice in this regard.

In support of that submission it relies on the evidence of Dr Bre Sullivan who told the Court that having considered the medical reports available to her she was not in a position to clear the Complainant to work in a safety critical role anywhere on the railway as to do so would place his own life and that of others at risk with possible serious consequences. She also told the Court that her decision was in line with international standards on rail safety in this regard.

It further submits that as no accommodation whatsoever could be put in place that would put the Complainant in a position to undertake the duties of the safety critical post in which he was employed, it had, in accordance with section 16(1)(b) of the Act, no further statutory or contractual obligations to him.

It further submits that the Complainant has the same terms and conditions of employment as all other members of staff employed in a similar capacity. It submits that it discharged the obligations placed on it by the Equality Policy it operates. In support of that position it placed a significant number of pieces of correspondence from the Human Resources Department to the operational divisions of the Company seeking alternative employment for the Complainant in a non-safety critical role. It submits that the procedures employed in this case were identical to the procedures it followed in all other cases that resulted in sourcing employment for staff that had developed disabilities while at work. It was not successful in this case as the Complainant had an additional constraint that he could not undertake safety critical work, use power tools or work alone and this operated against him in the search for an alternative post. It further submits that the Company was going through a period of significant retrenchment and this also reduced the scope for sourcing or identifying an alternative post as staff numbers were being reduced quite significantly at that time.

It submits that the Complainant failed to offer any evidence in support of his contention that two other named members of staff with a different disability were accommodated with alternative jobs and consequently treated more favourably that he had been treated.

It submits that the witness he did call in support of that claim, Mr Paul Cullen, told the Court that the complainant could not have undertaken the safety critical role that had been identified for one of the named comparators and on which the Complainant based his claim of unequal treatment contrary to section 6(2)(g) of the Act. It submits that no other evidence of different treatment was presented to the Court.

Findings of the Court

The Court has given careful consideration to the extensive submissions of both parties to this complaint and to the evidence presented by Mr Paul Cullen on behalf of the Complainant and of Dr Bre Sullivan on behalf of the Respondent.

The Court finds that the Complainant withheld information from the Respondent regarding his medical conditions in his original application form in 2004 and again in 2009. The Court accepts the uncontested evidence of Dr Sullivan that the Complainant’s disability rendered him unemployable in a safety critical role and that he would not have been employed into such a role had he declared his disability in 2004.

The Court further accepts the evidence of Dr Sullivan that no accommodation for the Complainant’s disability would render him capable of undertaking the work for which he was employed or any other safety critical role in the Respondent Company.

No evidence to the contrary was presented to the Court.

Accordingly the Court finds that, on this ground, the Respondent can avail of the defence of section 16(1) (b) of the Act.

On the second ground advanced by the Complainant it is well settled law that a person with a disability cannot be treated less favourably, than a person who does not have a disability or who has a different disability, in relation to his or her terms and conditions of employment. However the Court finds that in his submissions to the Court the Complainant acknowledges that his terms and conditions of employment, with particular reference to the equality policy, are identical to those of other comparable employees. He also acknowledges that the Respondent tried to source alternative employment for him in a non safety critical role. In this regard he did not contest the multiple enquiries made by the Respondent’s Human Resources Department seeking such a role for him. What he did contest was that the outcome of those efforts were different in his case than in two other cases.

The Court finds that this point is misconceived in that it implies that a bona fide attempt to source alternative employment must produce a successful outcome. The Court finds that the policy contains no such guarantee. The Court further finds that, based on the uncontested documentary evidence before it, the Respondent made a bona fide effort to source alternative employment in a non safety critical role for the Complainant, the only role in which he could work. However no such alternative employment was identified at that time despite the best efforts of all involved in the search.

The Court accordingly finds that the Respondent has not discriminated against the Complainant in relation to his terms and conditions of employment or in relation to the manner in which it applied those terms and conditions.

The Court further finds that the Complainant failed to adduce any evidence to support his contention that the Respondent treated two other members of staff with different disabilities more favourably than he. Indeed the only evidence he offered in this regard contradicted his contention that another person with a different disability was favoured over him for one such role. The evidence of his own witness was that he was not qualified to undertake that role due to the safety critical nature of some of the duties involved.

Accordingly the Court finds no merit in the complaint that the Respondent treated the Complainant less favourably than two named comparators with a different disability.

Determination

The Court determines that the Respondent did not discriminate against the Complainant on any of the claimed grounds. The appeal is upheld. The decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
06 June, 2017______________________
CCDeputy Chairman



NOTE

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