Complainant

Respondent

Parties

An   Operator Technician

A Contractor

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00000913-001

17/11/2015

The complainant was employed by the respondent between the 8^th   June 2015 to the 8^th November 2015, at which time the respondent   dismissed him. He claims discriminatory dismissal pursuant to the Employment   Equality Acts and on the grounds of his disability, a stammer. The respondent   rejects the claim. The complainant’s contract of employment provides that his   annual remuneration was €28,600 and provides at appendix A that various   night, overtime and distance payments are paid. In the complaint form, the   complainant states that his weekly gross pay was €735 per week, gross.

The   complainant outlined that he was interviewed by Operations Manager and the HR   advisor, where he told them his life story. He had done the same job in his   native country, an EEA state, and had also worked as a taxi driver, a   snowboard teacher, a courier and a landscape gardener. He holds the   qualification of “machine operator” and had worked in this role on the   railways in his native country. He provided evidence of this qualification to   the respondent and also provided references. During the interview, they   discussed his stammer. He had explained that for him, it is not a problem and   he had been able to use a radio in the machine operator role as well as when   he was a taxi driver. The complainant explained that as machine operator, he   would spend most of his time in the role standing outside of the machine,   communicating with the person inside the machine. He had also carried out the   role of the person inside the machine. The complainant outlined that after   the interview, he completed the pre-employment medical. The issue of his   stammer had been discussed.

The   complainant outlined that he commenced employment in June 2015 and he   initially sat back to observe the operator technicians. He was able to do   small jobs, such as to replace oil. He then sat the train driver course, and   he had to first do a safety course. He failed one part of the course. The   respondent was happy with his performance in the test. It had been a reaction   test but a problem arose when he had to explain the emergency. His English   had not been so good. The respondent were fine and said he would do better in   the second test. The complainant said that he was gone by the time the second   test took place.

The   Operations Manager and the Training and Standards Supervisor gave feedback.   He replied that he was not scared to speak and there was no problem. The   complainant never heard from the infrastructure provider that they had   problems with him. It was the provider who carried out the test.

In respect   of the referral to the Speech and Language Therapist, the complainant   said that at this time the respondent had offered him an English language   course. He sought to find a teacher, but later realised that the issue was   not his proficiency in English. He received a phone call for an appointment   with the Speech Clinic, which he thought was about his English. He wanted to   improve his English.

The complainant said that on the 30^th   October 2015, he met with the respondent at a named venue. The Operations   Manager and the HR advisor were there for the respondent. They said that   there was a safety issue with his stammer and that he could not speak with   signal staff. They said that they could not continue with him. The   complainant said he was shocked and did not think that this meeting was the   end. He told the respondent that he understood their problem with his   stammer, but that he was also shocked at letting him go.

In respect of the video and audio clips, the   complainant said that this was typical of the interaction when working on the   machines, but one could be hours on the track. He said that any time the   machine moved, the machine operator would have to communicate with the signalman.   Every operator used a piece of paper to record their moves. The complainant   said that the safety aspect of the role was important. One had to know   whether they were working on an open or closed line. Everyone, including the   machine operator, would attend a health and safety briefing.

In cross-examination, it was put to the   complainant that he had not disclosed the stammer as a medical condition in   the induction form he completed; he replied that he had discussed his stammer   in the course of his pre-medical assessment. His stammer was not a problem   for the complainant so he did not put the stammer down on the form. He   confirmed that he had previously obtained speech therapy and attended a   special school between the ages of 8 and 12. He had raised the issue of his   stammer at the interview with the respondent. The complainant confirmed that   the machine he operated in his native country was operated by four people,   with two inside and two outside. It was put to the complainant that in this   case, the guard inside the machine did most of the talking; he said that he   spoke a lot when he worked outside the machine. The guard spoke with the   control room. It was put to the complainant that the respondent was training   him to operate a two-person machine and this differed from the machine he   operated before; he replied that the work was the same and there were   requirements in his native country that led to the four-person machine being   used. The complainant accepted that when operating a two-person machine, he   would have to step in if something happened to the other operator. It was put   to the complainant that he would have difficulties in communicating if he was   the only person able to operate the machine; he replied that that this would   not be a problem for him. He did not dispute that he had a stammer. It was   put to the complainant that his evidence was that he had problems with ‘s’   and ‘ch’ sounds and that he would have to say words such as ‘stop’, ‘sleeper,   and ‘signal’; he replied that he had said ‘stop’ sometimes at the beginning   of an exercise or when moving to a new section. If he blocked, it would only   be for a second or two and he would then be back. It was put to the   complainant that this delay was the health and safety issue; he acknowledged   that this could be an issue but did not know of any health and safety issue.   It was put to the complainant that the respondent’s evidence would be that a   second or two would make a difference; he replied that he thought that   anything more than one or two seconds could be a problem.

It was put to the complainant that in the   first audio clip, there was lots of ongoing speech, where speech was fluid   and quick; he agreed with this assessment. The complainant was asked whether   a stammer would disrupt the fluidity; he replied that it was important to   write down what one would say and then to speak. He had time when the lights   were red to write. It was put to the complainant that he needed to be able to   communicate on an instantaneous basis; he replied that all operators wrote   down the basis of their communication with signalmen and that there was time   to do this. He said that he used the radio when working outside to say where   the machine should be moved to and did not write down instructions. Writing   was only used when speaking with signalmen. The complainant was asked whether   writing was a coping mechanism; he replied that writing helped deliver a   message verbally. It was put to the complainant that in an emergency, the   operator had to repeat back the message given by the control room; he replied   that in an emergency, they could use ‘stop’ buttons and that he could answer   back on the radio without writing anything down. He accepted that the use of   a ‘stop’ button would only stop the machine and would not tell the control   room that the machine had stopped. He said that in his four years in the   role, he had never had to use an emergency button. An operator could use   gestures to communicate when working outside.

It was put to the complainant that the second   sound clip was of a pressurised emergency and this posed a problem; he   replied that speaking had not been raised with him as an issue, it had been   his English. It was put to the complainant that his stammer was put to the   complainant at the meetings of the 13^th July 2015 and the 12^th   August 2015; he replied that he had been offered the English course at the   July meeting. He could not recall whether the stammer was raised, including   at the August meeting. The issue had more been about his English. The stammer   had not been raised as a problem and he had been using the radio. It was put   to the complainant that his probation had been extended in August 2015; he   replied that he knew that the respondent had raised issues and extended his   probation. He had not appealed the extension and was told that this was   because of his English. It was put to the complainant that he surely knew   when the referral to the Speech and Language Therapist was made that the   issue was not his English; he said that he knew what a Speech and Language   Therapist did, but it could also have been about language. He believed that   the referral was about his English. It was put to the complainant that this   was implausible as he had attended a Speech and Language Therapist in his   youth. The complainant accepted that he was made aware of the respondent’s   issues during the course of the consultation with the Speech and Language   Therapist. They discussed his role in work and his block. He had explained to   the Speech and Language Therapist that while a block causes delay, one could   do certain tricks. He had learnt the tricks ten years before that they   included going back for a second or using a different word or to use a   technique to get round the plosive. The complainant said that the best for   him was to take a short break of a second or so. The complainant was asked   whether he would have this time in an emergency; he replied that he had the   second. It was put to the complainant that changing sounds and words, or   having to repeat back could create difficulty. He could not change words in   an emergency. The complainant replied that everyone had always understood him   and that he rarely changed sounds. He was able to repeat sentences and   accepted that he could not substitute words in this situation.

It was put to the complainant that the   infrastructure operator had raised concerns about him; he replied that the   psychometric test had been a hearing/writing test, where they listened to a   recording and wrote out a report. He had met with an employee of the   infrastructure operator at the test centre. It was put to the complainant   that Operations Manager and Training & Standards Supervisor had raised   the infrastructure operator’s concerns in August 2015; he replied that he did   not recall these concerns being discussed. It was put to the complainant that   at the meeting of the 6^th October 2015, the complainant was told   that issues with his stammer and the test led to his dismissal. The   respondent had referred to the assessment of the Speech and Language   Therapist and the fact of the longstanding nature of the complainant’s   stammer meant that the respondent could no longer retain him. It was put to   the complainant that he had said that he was shocked by the meeting of the 30^th   October 2015, but this was similar to what had been discussed at the meeting   of the 6^th October 2015; the complainant said that he had been   shocked as everything before had been good. He had received good results from   the psychometric test, with the only issue being the communication issue in   writing down. He had done well in the reaction tests. He would have got better had he completed   the English course. The complainant did not accept that the two October   meetings were the same. The stammer had not been a problem for the respondent   at the beginning.

The   complainant was asked whether he had thought of getting a record of his   consultation with the Speech and Language Therapist; he said that he never   received a report from the Speech and Language Therapist and did not know of   the danger to his employment. As he did not see the report, he did not know   what to challenge. It was put to the complainant that he was   aware of the contents of the report on the 6^th October 2015 as   they had been given to him verbally; he replied that the first he knew of a   problem was at the termination meeting. He accepted that he had not said much   at the meeting of the 30^th October 2015. The complainant accepted   that he had not disputed the findings of the Speech and Language Therapist at   this meeting. He also accepted that he had not provided contradictory   evidence since this meeting, but he had not been provided with the report.   The complainant accepted that the minutes of the meeting of the 30^th   October 2015 were correct in that he had been asked for ideas to address the   concerns of the respondent. In respect of mitigation following the end of his   employment, the complainant said that he had sought work as both a bike   mechanic and a landscape gardener, and had worked intermittently in both   roles.

In re-direction, the complainant addressed the   issue of his bringing representation to the meeting of the 30^th   October 2015. He had requested to bring a named advisor to the meeting. On   the day of the meeting, the advisor was not let into the meeting. The meeting   had lasted five minutes at which time the complainant stopped the meeting.   The complainant and the two representatives of the respondent were early to   the venue of the meeting and they asked to start the meeting early. The   complainant stopped the meeting on being told of his termination and the   respondent later refused to meet with the advisor. The complainant said that   he had never been asked to provide his own medical report.

In further cross-examination, the complainant   said that the advisor had spoken to the Operations Manager regarding his   attendance at the meeting. It was put to the complainant that the grievance   procedure provides only for trade union representatives or colleagues to   attend meetings; the complainant said that he was never provided with the   grievance procedure. The respondent put it to the complainant that this was   not the case. It was put to the complainant that he was happy to proceed with   the meeting in the absence of the advisor and that he had not asked to   postpone or adjourn the meeting; he replied that he had thought it would only   be a few minutes before the advisor joined them and stopped the meeting when   the respondent did not wish to speak with the advisor, who tried to speak   with them when he arrived.

In closing comments, the complainant referred   to the reasons relied on by the respondent in the letter of the 7^th   October 2015 for the complainant’s dismissal and submitted that the   respondent had not advanced evidence to support its assertions. He submitted   that there had been an absence of fair procedures and natural justice,   including in not facilitating an appeal or in not providing him with a report   from the Speech and Language Therapist. He criticised the respondent for   using the adjudication to explore whether or not the complainant was capable   of carrying out the role of operator technician. The complainant submitted   that the respondent had not provided evidence of difficulties it says he   encountered while working for the respondent.

In deciding to dismiss the complainant, the   respondent had relied on verbal evidence at all stages. The documentation was   only produced afterwards. The respondent’s evidence had identified an   alternative role in Northern Ireland. The complainant also asserted that the   hearing of an equality complaint was not the time to assess the complainant’s   ability to do a job. The complainant had sought an appeal and no such appeal   was facilitated. The meeting of the 30^th October 2015 could not be   considered the hearing of an appeal. There had been no discussion with the   complainant about the impact of the stammer. There was no evidence of   reasonable accommodation being considered. It was submitted that the relevant   part of the client Rule Book did not require that an operator technician to be   able to drive a machine where a driver becomes sick or unable to drive. The   complainant submitted that the EU Directive did not apply to ‘closed’ lines.   It was submitted that the respondent had not adduced evidence of any safety   critical incidents. There had been positive feedback until the mood changed.   The assessment from the client assessment centre had been good except for the   comprehension issue. No risk assessment had been made of the complainant and   there had only been verbal discussions. It was untrue to say that the   complainant had struggled at work and there was no evidence of this. It was   submitted that this was an extreme case of disability discrimination and that   redress of reinstatement or the maximum penalty should be applied. It was   submitted that these events had a large impact on the life and circumstances   of the complainant. Losing the role had left the complainant in a precarious   position especially as he had done the same role in his native country. The   infrastructure provider, and the respondent contractor, were the only show in   town.

At the outset of the adjudication, the respondent presented sound and   video recordings of work or incidents recorded on the public transport   infrastructure network and carried out by employees of the respondent or others   on the network.

The respondent outlined that the first sound clip was a typical   exchange when a driver sought to move. The driver must obtain permission and   there is toing and froing over what is a fluid conversation. The driver must   identify themselves by a head code and signal, which gives their physical   location. The second sound clip occurred in an emergency where the driver was   obliged to give a running commentary of the incident and to update the signal   staff. This situation involved an overshoot. Every machine has at least two   people and the number ‘2’ person can step in to communicate. In respect of   the video clips, this showed a machine operated by one person, who received   information from two other people standing on the outside. The person inside   the machine is operating the machine according to the instructions of those   outside. This required concentration over the 6.2 hours of a shift. The audio   recordings related to when the infrastructure was “live” while the video   clips related to times when the infrastructure was undergoing maintenance.

The Operations Manager gave evidence. He said that he was Operations   Manager for the Irish site. He was responsible for the safe delivery of   shifts for the client. He interviewed the complainant and was not initially   concerned by his stammer. It was his understanding that the role the   complainant did in his native country and the one in Ireland were different,   where the two-person machine most often used. They tended to work with one   inside and one outside, or one inside and two outside when the machine was   moving. The audio and video clips illustrate the communication within the   team and with control. A second or two makes a difference, especially in an   emergency as messages had to be repeated back. There would be constant communication,   for example in the emergency situation where the driver had to give a running   commentary.

The Operations Manager said that during training, the complainant   would have been observing and not really communicating with others. In   respect of the meeting of the 13^th July 2015, the Operations   Manager said that he did all 1-1 meetings with new employees. He and the   complainant discussed his psychometric test results and the feedback given by   the manager and colleagues. It was a positive meeting and the reference in   the notes to “struggling with comprehension” related to the failed section of   the psychometric test. It was obvious that there was a comprehension issue   and this was linked to grammar, his English and the stammer. The Operations   Manager said he discussed this with his line manager and with HR.

The Operations Manager said that by the time of the 12^th   August 2015 meeting, they were further down the line and he had obtained more   feedback. They had more observations and this identified an inability to   communicate fluently. This feedback was given by other operators and   trainers. The respondent extended the complainant’s probation and made the   referral to the Speech and Language Therapist. In respect of the meeting of   the 6^th October 2015, this took place after the reference to the   Speech and Language Therapist. They discussed the concerns raised by the Speech   and Language Therapist and the feedback of clients and colleagues. This   feedback related to concerns regarding communication with colleagues. There   had not been any incidents, just this feedback brought to his attention. He   said that the client commanded some elements of what the respondent did. They   raised whether there would be a clear and concise flow of information. The   complainant could have been required to drive a machine when no one else was   able to drive it. The Operations Manager said that they explained this to the   complainant and that they would have to explore these issues. He commented   that the email of the 7^th October 2015 was a fair reflection of   the meeting.

The Operations Manager said that he met with the complainant on the 30^th   October 2015 and also received a phone call from the advisor. They had   arranged to meet the complainant, but as this was an internal matter, there   was no role for the advisor. This meeting was not dissimilar to the meeting   of the 6^th October 2015 and the respondent asked for a suggestion   as to how to go forward. He said that the complainant was dismissed because   of his inability to communicate freely with colleagues, signalmen and   control, including safety critical communication. While one could only assess   this in real-life, the Operations Manager said that his view was that the   complainant would struggle. He commented that he had supplied the grievance   procedure to the complainant.

In   cross-examination, it was put to the Operations Manager that if the email of   the 7^th October 2015 was a fair reflection of the meeting the   previous day, he would accept that there was no reference to health and   safety or an inability to communicate; he replied that the email refers to   the issue of “safety critical communication”. It was put to the Operations   Manager that the health and safety concern had only been raised after the   complainant’s dismissal. The Operations Manager was asked where it was   stipulated that it was a requirement that an operator technician pass the   driver test; he replied that the respondent dictated that all operators pass   the driver test. On being questioned, the Operations Manager refused to   disclose the names of the client staff who raised issues with him about the   complainant. He said that they voiced concerns of a safety critical nature.   The Operations Manager accepted that the respondent operated four-person   machines, but that the requirement was that all operators are able to drive   on live infrastructure in possession, and this applied to all machines. He   also commented that while control are automatically notified should a large   vehicle fail, any issue with a machine needed to be called in. In respect of   the notes of the meeting of the 13^th July 2015, the Operations   Manager said that the situation was positive at this time and no issues   raised. They discussed the issue of the complainant’s stammer but this was   not included in the report. It was put to the Operations Manager that the   meeting and subsequent letter of the 12^th August 2015 referred to   communication and the English language; he replied that the respondent   procured help from a Speech and Language Therapist because of its concerns.

The   Operations Manager was asked what alternative roles the respondent had   considered; he replied that the respondent had looked at alternative roles,   but there were no such roles. There was no separate operator position and all   operator technicians were qualified drivers. In respect of reasonable   accommodation, the Operations Manager said that they looked at a particular   position in a named depot but there was a general operative there for the   role. The Operations Manager was asked whether the complainant could have   continued as an operator without the driver qualification, where he could   work on four-person machines; he replied that the ability to communicate was   always a part of the role, including when working on four-person machines. He   confirmed that there was no available depot role. He said that the   consultation had been verbal between his line manager and HR. The respondent   had also asked the complainant for suggestions as to how to move forward. The   Operations Manager was asked about his concerns regarding the complainant’s   day-to-day communications; he said that he had relied on feedback and had   also met the complainant a few times. The Operations Manager had not seen the   complainant working on sites, as he was then observing work. In respect of   the meeting of the 30^th October 2015, the Operations Manager said   that as the advisor was coming, he presumed that the complainant was   consulting with the advisor.

In   re-direction, the Operations Manager said that 70% of the machines the   respondent used were two-person machines. There was also no suggestion from   the complainant that a role be created for him.

The Operations   Manager gave further evidence on the second day of the adjudication as new   issues arose in the evidence of HR advisor. In respect of the person who was   retained in October 2016 after failing the psychometric test, the Operations   Manager said that the respondent had carried out a business review at this   stage as there had been a change in a contract. This person filled an   operator role and held the same safety critical communication roles. It was   operator technicians who went through additional training. An operator,   however, may also need to step in to fill in for the colleague. He said that   more than 70% of machines were two-person machines and it was rare for other   machines to be used.

In   cross-examination on the second day, the Operations Manager stated that the   operator must be in a position to operate a machine. He was asked how the   operator could drive the machine without a driver qualification; the   Operations Manager said that the operator did not need to have a driving   qualification and could only work on three or four-person machines. The   person was not assigned to two-person machines, but he might have to step in   to drive. It was put to the Operations Manager that this showed that the   driver qualification was not necessary for the role. It was put to the   Operations Manager that the respondent should have considered assigning the   complainant to only work on three or four-person machines. He confirmed that   certain large machines operated full-time and stated that these roles   required constant communication. He stated that the EU Directive did not   apply to the person recruited to the operator role in 2016 as he held a   different function. He stated that this role was created following a business   review and that he was with two or three other drivers at all times. This   person has never driven the machine.

In further   cross-examination, the Operations Manager said that a risk assessment was   carried out on all machines. Asked whether the complainant was put through a   risk assessment, he replied that there had been a management discussion and   they carried out the assessment. They covered all the concerns. It was put to   the Operations Manager that it was unusual to rely on such verbal reports and   assessments; he did not agree and that they often did such verbal risk   assessments. The Operations Manager said it was possible that all the   comments from colleagues and all assessments in this case had been verbal.

In   re-direction, the Operations Manager explained that the changing business   needs were obtaining a contract in Northern Ireland and the extra workload   required three more machines. He agreed that this occurred nine months after   the end of the complainant’s employment and took place in the summer of 2016.  

The HR   advisor gave evidence. She said that she commenced in the role in January   2014 and she had been involved in the recruitment of the complainant. She had   interviewed the complainant and the issue of his stammer had been flagged by   the Operations Manager as a matter of concern. They took the stammer on board   and had regard to his experience in the area. The email of the 12^th   August 2015 extended the complainant’s probation and this was because of the   communication issues. There followed a meeting between the Operations Manager   and the Training & Standards Supervisor   at which the concerns raised by other colleagues were discussed. The   respondent had concerns regarding safety critical issues and they understood   from the Operations Manager that there was the need to be able to communicate   swiftly and quickly and to be able to make continuous communication on a   radio. The respondent arranged the referral to the Speech and Language   Therapist and had two concerns: English language and the stammer. They were   separate enquiries. The Speech and Language Therapist said she would assess   the complainant and advise regarding possible treatment. Prior to the   assessment, she had explained the nature of the role to the Speech and   Language Therapist, including that it involved using radio equipment. The HR   advisor received a verbal report from the Speech and Language Therapist to   say that the stammer was longstanding and since childhood. She was told that   it would take time to address and advised that the Therapist could provide a   number of sessions. The HR advisor said that this was not pursued as there   would not be longevity in the role. She had not been given any indication of   when the complainant’s speech would improve and it would take time. The   safety critical nature of the role would have factored into the psychometric   assessment. She had spoken with the Speech and Language Therapist within a   day of her assessment and had raised these issues with the complainant within   a week.

In respect   of the meeting of the 6^th October 2015, the HR advisor said that   they had explained to the complainant the safety critical nature of the role   and that being able to use the radio was essential. They explained to the   complainant that they had received the report from the Speech and Language   Therapist. They said that colleagues had raised issues regarding dangers. The   complainant had never provided a rebuttal to the report of the Speech and   Language Therapist. The HR advisor said that the respondent had not offered   the complainant alternatives to the role, and nor had it expected the   complainant to provide such alternatives. The respondent had looked at   alternative roles, such as that of a fitter, but the complainant did not have   the required skills.

The   complainant had asked that someone accompany him to the meeting of the 30^th   October 2015, but she was not aware of any external representative joining   them. They had asked the complainant whether he was ready to start the   meeting and he was. They went over what had been said in the earlier meeting   of the 6^th October 2015 and that there was a lack of alternatives.   They asked the complainant whether he had alternatives to put forward, and he   had none. It was a short meeting as the complainant did not advance any   alternatives.

In   cross-examination, the HR advisor was asked about her comments that   colleagues had raised the issue of being “endangered”; she replied that these   colleagues had stated this to their supervisors, including the Operations   Manager and the Training & Standards   Supervisor. The colleagues had said they would be uncomfortable with   someone with such communication issues during an incident. The HR advisor did   not know how many complaints there had been from colleagues. The Operations   Manager and the Training & Standards   Supervisor had referred to several complaints and they had raised   concerns on safety grounds in the event of an incident. It was put to the HR   advisor that the complainant had worked out his notice and had not been   placed on garden leave; she replied that in this time, the complainant’s   duties had been adapted so that he would not place any colleague in danger.   The HR advisor was asked whether there had been a risk assessment, she   replied that the complainant had been in training and the assessment had been   carried out. The HR advisor was asked whether she had seen this as an   equality issue; she replied that this was a safety issue and the respondent   had approached the Speech and Language Therapist to explore the long-term   sustainability of the role. She said that she had received an immediate   verbal report from the Speech and Language Therapist and she contacted the   complainant to say that they were reviewing his role following the   assessment. It was put to the HR advisor that the complainant should have   seen the report; she replied that in discussions with the management team,   the report of the Speech and Language Therapist showed that there would not   be longevity in the complainant’s position.

The HR   advisor was asked about the assessment made of the complainant’s use of the   radio and the statement by the Operations Manager that he had observed the   complainant in training; she replied that she did not know what assessment   had been made and that the training programme required the complainant to use   radios and handsets. The HR advisor was asked whether the alternative roles   were the only reasonable accommodation considered; she replied that they had   looked at other roles, including the fitter role. They were not happy for the   complainant to continue in the current position because of the safety critical   nature of the role. The HR advisor was asked what specific modifications to   the role had been considered; she replied that the criteria for the role are   stated in the job profile and this includes the communication aspect. She   stated that there were no operator technicians who did not have the driver   qualification. It was put to the HR advisor that a named person had failed   the psychometric test but retained as an operator; she replied that this   person was an operator. The respondent had reviewed the situation in August   2016 and in the circumstances, created the operator role. This person uses   the radio. There had been no business requirement to create a separate   operator role at the time of the complainant’s dismissal. It was put to the   HR advisor that the complainant had been denied the opportunity to appeal the   dismissal, as sought in the letter of the 6^th November 2015. She   did not accept this and said that she did not have their response to hand.   The complainant was sent the grievance policy.

In re-direction,   the HR advisor commented on the operator and operator technician roles and   said that the operator role had been created as a once-off and to meet   business needs. The person had not met the technical requirements and is   still required to use both a handset and a radio. Commenting on the purpose   of the meeting of the 30^th October 2015, the HR advisor said that   this could be considered an appeal to look again at the issues discussed on   the 6^th October 2015. The complainant had not put forward any   reasonable accommodation, alternatives or medical reports for the respondent   to consider. She agreed that the letter of the 7^th October 2015   makes reference to the report from the Speech and Language Therapist and the   complainant had not provided any medical evidence to dispute what was stated   in the letter. While the report from the Speech and Language Therapist had   been verbal, the HR advisor had recorded the points made in the report. The   key thing arising from the report was the length of time it would take to   address the issue.

In closing   comments, the respondent said that it was not accurate to describe this as an   extreme case. The respondent had medical evidence before it and obtained the   expertise of the Speech and Language Therapist, including the verbal report.   Because the stammer was longstanding, the Speech and Language Therapist could   not say when the complainant would not experience issues with communication.   The complainant could block for between a quarter of a second to 20 seconds.   The Speech and Therapist said that the complainant would not be able to   communicate in an instant when blocked. ‘S’ sounds were an issue and they are   common in the work undertaken by the respondent.

It was further   submitted that there was no evidence presented by the complainant to   contradict the findings of the Speech and Language Therapist. It was striking   that there was no medical evidence provided by the complainant. He also   offered no alternatives of reasonable accommodation. The respondent went   beyond the obligations imposed on it by section 16 of the Employment Equality   Act by seeking alternative roles for the complainant. Section 16(3) of the   Act does not require that an employer find an alternative role. In respect of   re-instatement, the respondent submitted that the redress sought in the Nano Nagle case had been   re-instatement and this had not been awarded by the Labour Court.

The   respondent submitted that the video and sound recordings showed the level of   communication required in the role, for example when leaving a depot or in   using safety critical equipment. The complainant was not fit to carry out the   role within the meaning of section 16(1) of the Employment Equality Act.

It was   submitted that the situation of the named person being recruited to the   operator role arose afterwards. There had been a business case for this   decision that had not arisen at the time the complainant was dismissed. It   was submitted that most of the machines are two-person machines. It was to be   determined in this case whether the complainant was fully able to do the   two-person role at the time of his dismissal. It was submitted that the   evidence did not support this conclusion. It was further submitted that there   had effectively been an appeal as the complainant had been given the chance   to put forward alternatives. In respect of any award of damages, the   respondent submitted that regard should be had to his length of service and   that he was still on probation. There has been no evidence of the effect of   any discrimination. The respondent had received a verbal report and this was   undisputed. Having regard to the safety critical element of the role, no   reasonable accommodation was possible. No contradictory evidence had been   advanced by the complainant.

Section 16   of the Employment Equality Acts, as amended, provides as follows:

“16 (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.

…

(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 -

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)—

…

‘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”

In respect of an employer’s obligations to   provide such appropriate measures to an employee with a disability (in this   case, a crèche worker where the disability was an eating disorder), the Labour Court   held in Humphries v Westwood Fitness   Club [2004] E.L.R. 296:

“This section [section 16], 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 is 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.

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.”

The   Equality Tribunal in Clavin v Marks   & Spencer (Ireland) Ltd (DEC-2015-055) held (in respect of a sales   advisor) as follows:

“To avail of the Section 16(3) defence an employer must   show genuine engagement with the process of finding effective and practical   measures to allow an employee to return to work. As per A Health Club   and a Worker the respondent did not make adequate enquiries nor   was it in full possession of the material facts regarding the complainant’s   disability before it dismissed her. Neither was the complainant allowed to   influence this decision…”

The   parties agreed that the High Court decision of Nano Nagle School v Daly [2015] IEHC 785 represented the current   legal position in respect of the obligations of an employer under section 16   of the Employment Equality Acts. The complainant asserts that the respondent   did not comply with its obligations arising from this provision, while the   respondent rejects this assertion.

The   Equality Tribunal in Nano Nagle   (DEC-E2013-168) held that the employee was not fully competent and available   to undertake her duties and that the employer had discharged its obligation   under section 16(3). The Labour Court (reference EDA 1430) found that the   complainant was entitled to succeed in her appeal as the respondent school   had not adequately considered options of reasonable accommodation. Having   reviewed CJEU and domestic case law, the Court summarised the position as   follows:

“It is clear from the decision of the CJEU in HK Denmark that the duty to provide reasonable accommodation   must be ascribed a broad ambit. The ultimate test is that of reasonableness   and proportionality. The duty is imposed on employers and it is for the   employer to make an honest and informed decision of what is reasonable and   proportionate having regard to all of the material circumstances. That   involves putting a number of considerations into the balance including the   practicability of what may be required, the costs involved, the disruption   that may be caused to the service that the employer provides and the   consequences for the disabled person of not providing the accommodation   required.

Where an employer reaches an honest and informed decision having   considered all of the available options the Court must show a high degree of   deference to that decision and should not seek to substitute its opinion on   what is possible or reasonable in the particular circumstances of that   employment. If, however, the employer fails to properly understand the scope   of its duty or fails to adequately consider all of the options that may be   available they will have failed in their statutory duty toward the disabled   person.

In this case the Respondent did obtain independent professional advice   on the Complainant’s capacity. That advice did not rule out the possibility   of the Complainant returning to work if certain adjustments were made to the   range of tasks that she would be expected to perform. The Complainant was not   consulted on the question of how effect might have been given to the   recommendation made by the professional advisors. Nor did the Respondent’s   Board of Management properly or adequately consider that question. It simply   concluded that because the Complainant was manifestly unable to undertake the   full range of duties attaching to the job of an SNA she could not return to   work. Had the Respondent given full and adequate consideration to all the   possible options it might or it might not have reached a different decision.   That, however, is not a matter on which the Court can speculate.”

In Nano   Nagle, the High Court held as follows in relation to the application of   section 16:

“56. Turning now to the issue of the Labour   Court’s interpretation of s. 16, the Labour Court noted at the outset that it   was the school’s position that s. 16 does not require an employer to continue   an employee in employment who is not fully capable of undertaking the job   that he or she was employed to do. It seems to me that as counsel for Ms.   Daly submitted, the school adhered to this position throughout up to the   commencement of the hearing of this appeal when it modified its position to a   significant degree by conceding that s. 16 may require the stripping out of   tasks peripheral to the job. That concession was not made at the hearing before   the Labour Court. Thus the school’s position was that the concept of   reasonable accommodation and the implementation of appropriate measures as   defined in subs. (3) and (4) applied only to such measures as would render   Ms. Daly capable of fulfilling all the duties of the job. Since no amount of   reasonable accommodation or appropriate measures could ever achieve that   situation, the school considered itself to have no further obligation to Ms.   Daly.

…

9. Ring,   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.
10. Ring, 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 – see Archibald v. Fife Council [2004]   UKHL 32 and Chief Constable of South   Yorkshire Police v. Jelic [2010] IRLR 774.”

The fact of a speech impediment being a   disability was not in dispute. The complainant commenced working for the   respondent on the 8^th June 2015 and signed a contract of   employment on the 3^rd June 2015. He attended an interview with the   respondent and completed an induction form, dated the 27^th May   2015. He states that he has worked in the industry for four years and that he   did not have a medical condition which could affect his work. In a letter   dated the 12^th August 2015, the respondent extended the   complainant’s probation to allow it “address   concerns we have with your English comprehension and communication.” The   letter refers to the complainant being willing to attend an English language   skills course. The complainant’s employment was terminated by email of the 7^th   October 2015. It states “However, it   was flagged to us at the time of the test that [the client] had concerns   regarding your suitability for the Driving Trainers Course due to your   stammer, I subsequently spoke with the [Speech and Language Therapist]. She   informed me that your stammer is of a long standing nature (you’ve had it   since childhood) and correction or improvement will take considerable time.   As the Driving Trainers course is a necessity for your role, the company has   no choice but to terminate your employment at the end of the probationary period   on 8^th November 2015.” A later email of the 14^th   October 2015 refers to the reason for the dismissal being health and safety   reasons. The notes of the meeting of the 30^th October 2015 state   as follows “Because of Health and   Safety risks, there were particular concerns regarding his suitability for   the Driving Trainers Course due to his stammer. Part of the course around   Safety Critical Communication would entail the use of radio equipment.”   In correspondence of the 7^th December 2015, the respondent states “The speech and language therapist advised   us that his communication would have implications in the workplace and the   completion of the Driver Training Course.”

The   complainant was assessed by the Speech and Language Therapist on the 16^th   September 2015 and her report is dated the 17^th November 2015. The   Speech and Language Therapist gave a verbal report to the respondent   immediately after the assessment. The written report was made available to   the complainant shortly before the scheduled adjudication date of the 13^th   April 2016. The report of the 17^th November 2015 is an assessment   of the complainant’s speech and states “Possible   strategies to help improve [the complainant’s] fluency were discussed with   him. Therefore, the blocks in [the complainant’s] speech will affect his   ability to communicate verbally instantly so this would have implications in   the work place.”

The Speech   and Language Therapist attended the adjudication and I am grateful for her   attendance. Her evidence assisted in addressing the issues arising in this   case. It is clear from her evidence that it was her professional opinion that   the complainant could block and issues could arise where he was required to   speak instantly. She was also clear that her main focus related to therapy   for the stammer. Her evidence was that she had not assessed the complainant’s   suitability for the role or the Driving Trainers course, nor had she looked   at reasonable accommodation.

The   respondent’s evidence was that there were concerns and feedback from one or   more persons regarding the complainant’s performance and suitability. This,   however, contradicts the note of the 13^th July 2015 which states   that “the reports coming back about   [the complainant] were good and his willingness to learn and build his   confidence is not going unnoticed.” The complainant’s evidence was that   the mood changed after he visited a facility operated by the client to sit a   psychometric test. The complainant did well on aspects of the test and failed   one part. He was to re-sit the test but this never occurred as his employment   came to an end. Having considered the evidence, it is striking that there is   no document to support the concerns or negative feedback regarding the   complainant’s performance at work. There is no report or email about any   particular event, where the complainant’s communication presented an issue.   There was no risk assessment assessing the complainant’s ability to do the   role. I am satisfied that the extent of the feedback from the client was that   the complainant was not suitable because of his stammer. I am further   satisfied that this arose following the complainant’s attendance at the   facility operated by the client.

I   appreciate that this placed the respondent in a difficult position. It was   the complainant’s employer but it was engaged by the client in repairing and   maintaining the infrastructure network operator by the client. As the   complainant put it in submissions, the infrastructure network is the only   show in town. The respondent referred the complainant to the Speech and   Language Therapist to find out whether the stammer could be treated and how   long this might take.

Having   considered the evidence, I find that the respondent did not discharge the   obligations under section 16 of the Employment Equality Acts. First, I find   that the respondent did not make adequate enquiries regarding the impact of   the complainant’s stammer on his ability to do the job. It was not in   possession of all the material facts. I accept the respondent referred the   complainant to the Speech and Language Therapist, but the evidence points to   this assessment focusing very much on his relative fluency. Apart from   stating that the complainant could block and have delayed speech, there was   no other analysis of his actual performance at work. I have commented above   on the absence of any evidential support for the negative feedback or   performance issues. No risk assessment or formal health and safety review was   carried out of the complainant at work. I accept the contention advanced by the   complainant that assumptions were made on the basis of the complainant’s   dysfluency regarding his ability to work. I conclude that the respondent had   not made the enquiries necessary to conclude that the complainant was   incapable of doing the role of operator technician or the newly-created   operator role. Moreover, I find that the respondent did not adequately   consult with the complainant regarding the impact of the stammer on his role.   No written report was provided from the Speech and Language Therapist until   after the complaint was lodged and only supplied to the complainant some   months after his dismissal. It was not enough to ask the complainant to put   together his own evidence at the meeting to dismiss him and at the later   meeting.

The   initial position of the respondent was that the complainant could not pass   the Driver Training course with his stammer and this was an absolute   requirement for the operator technician role. The complainant suggested that   he should have been given the accommodation of a pared-back role, without the   Driver Training qualification. In evidence, it was established that after the   complainant was dismissed, an operator position was created for an employee   who also failed the psychometric test. The respondent submitted that communication   was a safety critical element of both the operator technician and operator   roles, and that both roles require fluent communication. It submitted that   the new role was created following a business review in 2016. Given that this   was a matter that arose only in cross-examination on the second day of the   adjudication, there was relatively little evidence on this important aspect   of the case. It is striking that what the complainant sought in 2015 was not   provided to him (when the respondent stated that the Driver Training   qualification was an absolute requirement), but was available to someone else   in 2016 (when the requirement was not applied).

It follows   from the above findings that the claim is well-founded. The complaint of   discriminatory dismissal on grounds of disability succeeds. In respect of   redress where an employer fails to comply with section 16 of the Employment   Equality Act, and the steps set out in Humphries   and Nano Nagle, the obvious redress   is reinstatement. It is the obvious step as the employee is returned to their   position in order for another assessment to be made of their capability to do   the role in line with section 16. This, of course, could lead to a conclusion   that no reasonable accommodation can be made. Redress such as reinstatement   could be said to the method of redress that does justice in such a case (see,   in the context of an Unfair Dismissal claim, Bank of Ireland v Reilly [2015] IEHC 241.)

Having   considered the question of redress at some length, I am not inclined to grant   reinstatement or reengagement and instead, order compensation. I have regard   to the relationship between the respondent and the infrastructure provider.   In assessing the amount of redress, I take account of the complainant’s   performance in the role (as, for example, detailed in the note of the 13^th   July 2015) and his previous professional experience in the role. I take   account that the complainant will likely never work on the infrastructure   network in question. This is not a case of a crèche worker who can find work   in another crèche, or a sales advisor who can find work in another department   store. I take account of the evidence given by the complainant regarding the   effects the discrimination had on him, supplemented by his detailed statement   attached to his solicitor’s letter of the 25^th March 2016. Taking   these factors together, I award the complainant redress of €50,000.

CA-00000913-001

I have concluded my   investigation of this complaint. Based on all of the foregoing, I find,   pursuant to Section 79 of the Act, that the complainant was the subject of   discriminatory dismissal on grounds of disability. In accordance with Section   82 of the Act, I order the respondent pay to the complainant €50,000 in   compensation. The award is redress for the infringement of the complainant’s   statutory rights and, therefore, not subject to income tax as per Section   192A of the Taxes Consolidation Act (as amended).

Employment   Equality Acts, section 16

Disability   / stammer

Humphries v Westwood Fitness Club [2004] E.L.R. 296

Nano Nagle   School v Daly [2015] IEHC 785