DEC-E2018-014

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2018-014

PARTIES

A Bus Driver

Vs

Dublin Bus

File reference: ES/2014/0157

Date of issue: 1ST of May 2018

1.       Dispute

This dispute involves a claim by a complainant that he was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 when they failed to provide him with reasonable accommodation for his disability.   There is also a claim of discriminatory dismissal.   

2.       Background

2.1       The complainant referred a complaint against the above respondent on the 10th of July 2014.

2.2       In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on 29th of September, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts.  Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 15th of December, 2017 and a second hearing on the 26th of January, 2018.   Final correspondence in relation to this complaint was received on the 9th of February, 2018.  

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

3.       Summary of complainant’s case

3.1       The complainant submits that

he was employed by respondent as a bus driver from the year 2000 to 19th of April, 2014,

he was involved in a road traffic accident outside of his work in February 2011 and was off sick from work since the 5th of February 2011 following the accident,

he was out sick for three years following his accident during which he was assessed by the respondents CMO on 19 occasions,

the complainant was on medication for back problems as well as anti-depressant medication,

the complainant was forced to retire on ill health grounds on 19th of April, 2014,

the respondent did not provide him with alternative duties thus failed to provide him with the reasonable accommodation for his disability,

he was discriminated against, on grounds of disability when the respondent failed to provide him with reasonable accommodation for his disability,

he was dismissed by the respondent on the 19th of April, 2014 which amounts to a discriminatory dismissal on grounds of disability.

4.      Summary of Respondent’s case

4.1       The respondent submits that

the complainant was employed by them as a bus driver from the year 2000 to 14th of January, 2014,

the complainant was involved in an accident outside of work in February 2011 following which he was unable to return to work,

the complainant was absent from work on sick leave for three years after which he was recommended for retirement on ill health grounds,

the complainant during his three years of sick leave was seen by the respondent’s CMO on 19 occasions,

the CMO on behalf of the complainant in July 2013 had sought alternative duties in the form of a non-driving role for the complainant but no such duties were available,

the CMO advised the complainant on 15th of November 2013 that she would be recommending his retirement on ill health grounds,

the complainant was notified in writing on 10th of December 2013 that he was to be retired on ill heath grounds effective from 14th of January, 2014.

5          Preliminary Issue of claim taken under Equal Status Act instead of under Employment Equality Act

5.1       The complaint was submitted on the 10th of July 2014 under the Equal Status Acts.  The complainant prior to hearing clarified that it was his intention to submit his complaint under the Employment Equality Acts as the matters complained of relate to an employment matter specifically in relation to his retirement from his job on grounds of ill health and the respondent’s failure to provide him with reasonable accommodation.    The Equality Tribunal raised this matter with the complainant by letter dated 7th of August 2014, indicating that it appeared that the complaint should more appropriately be submitted under the Employment Equality Acts.  The complainant replied to this letter on the 27th of August 2014, stating that the complaint should have been submitted under the Employment Equality Acts. 

5.2       In considering the complainant’s request to pursue the claim under the Employment Equality Acts despite the fact that he submitted it under the Equal Status Acts, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 . In that case McGovern J. held that  it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".

5.3       In the present case the complainant had submitted the incorrect form but had still referred to an allegation of discriminatory treatment on the ground of disability and had also indicated that his claim related to a failure to provide reasonable accommodation for his disability.  The narrative of the form set out the details of the claim being made and clearly stated that he was claiming that his contract had been unlawfully terminated by the respondent when he was retired on grounds of ill health.    The complaint form was submitted to the Equality Tribunal on the 10th of July 2014 and a notification of same was sent to the respondent on the 9th of July 2014. 

5.4       I am thus satisfied that the respondent was on notice that the subject matter of the complaint related to an employment matter, more specifically in relation to the respondent’s decision to retire the complainant on grounds of ill health and an allegation that the respondent failed to provide the complainant with reasonable accommodation for his disability. 

5.5       I am satisfied that the respondent has been on notice of the claim of discriminatory treatment on the ground of disability and of discriminatory dismissal as well as a claim of failure to provide reasonable accommodation to an employee, since July 2014  and is in no way prejudiced by the complainant pursuing a claim under the Employment Equality Acts despite the fact that he had submitted his initial complaint under the Equal Status Acts.

5.6       I am satisfied given all of the circumstances of the present case, that it would not be contrary to fair procedures and natural justice for me to consider the complaint under the Employment Equality Acts 1998 to 2015.  Accordingly, I am satisfied that I do have jurisdiction to permit the complainant to proceed under the Employment Equality Acts 1998-2015.

5.7       The respondent at the hearing also raised the issue that the last date of discrimination cited on the complaint form was the 14th of January 2014 and that the time limit for notification under the Equal Status Acts was two months from the date of the alleged discriminatory treatment.  The complainant at the hearing stated that this was incorrect as he stated that he only received his p45 on the 19th of April  2014 and submits that this was the last date of discrimination.    The respondent’s issue in respect of notification under the Equal Status Acts is no longer relevant as I have decided to allow the complaint  to proceed under the Employment Equality Acts.   The time limits for submission of a complaint under the Employment Equality Acts is six months from the last date of the alleged discrimination.  The complaint in this case was submitted on the 10th of July 2014 thus the relevant period for the complaint to be within time dates from the 11th of January, 2014 to 10th of July, 2014.

6.         Preliminary Issues in respect of Personal Injury Claim

6.1       The respondent advised the hearing that the complainant had already received a settlement of a Personal Injuries claim in respect of the road traffic accident which had rendered him unfit for work since 5 February 2011.  The respondent submits that it is unaware of the terms of the settlement but submits that it was a claim to the High Court where awards of damages must exceed €60,000.    It is submitted that by the time the claim was settled in October 2017 the complainant had been retired on ill health grounds for over three and a half years.  The respondent submits that the complainant as part of this personal injury proceedings claimed that he was unable to work as a result of the negligence of the defendant in the Personal Injury claim but is now claiming that he was subjected to a discriminatory dismissal by the respondent when he was retired on grounds of ill health.  The respondent also submits that the complainant in his Personal Injury settlement would have been compensated for loss of earnings and loss of future earnings and states that to proceed with a claim of discriminatory treatment and dismissal was an attempt by the claimant to claim twice.  I advised the parties that the presence of a Personal Injury claim does not preclude a complainant from proceeding with a claim under the Employment Equality Acts.  I also advised them that awards of compensation under the Employment Equality Acts are awards made to provide for the effects of the discrimination not for loss of earnings. 

6.2       The complainant in outlining the redress sought stated that he was seeking reinstatement and compensation.  The respondent submits that the complaint cannot proceed on this basis given that an award of reinstatement contains an element of loss of earnings and thus would mean that the complainant in this case would be double compensated for loss of earnings having already received compensation for loss of earnings in the Personal Injury settlement.    In addition, the respondent submits that the complainant, if a finding was made that he was to be reinstated could be in a position where he is re-employed while having already received compensation for loss of future earnings.  The complainant’s representative then advised the hearing that in seeking reinstatement he was only seeking the elements of reinstatement which did not include the loss of earnings element.   Having considered this matter, I advised the parties that the matter of redress to be awarded would be a matter for me as the adjudicator to decide within my decision, in the event that a finding was made in favour of the complainant. 

7.  Disability Ground and Notification of Disability

7.1.      It is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts. 

Disability” is defined in Section 2 of the Acts as meaning –

           “(a)       the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

           (b)         the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

           (c)         the malfunction, malformation or disfigurement of a part of a person’s body,

           (d)         a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

           (e)         a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

7.2       The complainant advised the hearing that he was involved in a road traffic accident in his private car in February 2011 following which he suffered from significant back pain and depression and following which he was out of work on sick leave for a period of three years.  It is submitted that the complainant was prescribed medication in the form of painkillers and anti-depressants and was taking Lyrica and Lexapro for these conditions.   Numerous medical reports were submitted as evidence in support of this.  

7.3       The respondent does not dispute that the complainant has a disability.  The respondent advised the hearing that the complainant had visited its Chief Medical Officer (CMO) three weeks after the road traffic accident and also on eighteen subsequent occasions.   It is submitted that the complainant was absent from work on sick leave for over three years following his accident.  Both parties agree that the complainant was retired from his job on ill health grounds.

7.4       I am thus satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent was aware of the complainant’s disability.

8.       Findings and Conclusions of the Equality Officer

8.1       The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of his disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his dismissal and in relation to a failure to provide him with reasonable accommodation for his disability.  In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.  

8.2       Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.  If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

8.3       Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

8.4       Reasonable accommodation

8.4.1    Section 16(1) of the Acts states that

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….....

(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and full 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.

8.4.2    In addition Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].  

8.4.3    In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court  interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. 

8.4.4    The complainant advised the hearing that he was involved in a road traffic accident in his own private car in February 2011.  The complainant told the hearing that he suffered severe back pain following the accident for which he was prescribed painkillers.  The complainant also told the hearing that he suffered from depression after the accident for which he was prescribed anti-depressants.  The complainant told the hearing that he was unable to return to his job as a bus driver and that he was on sick leave from work for three years following the accident.    The complainant advised the hearing that he attended the respondents Chief Medical Officer on a number of occasions during his sick leave.  The complainant advised the hearing that he was dismissed by the respondent on grounds of ill health on the 19th of April, 2014 as this was the date on his P45.  The respondent agreed that the complainant was dismissed on grounds of ill health but submits that this dismissal took place on the 14th of January 2014. The respondent provided evidence of the letter of 14th of January 2013 which issued to the complainant.   In addition, the complainant in his complainant form to the tribunal cited the 14th of January 2014 as the date of dismissal and again in correspondence from the complainant’s representative on 27th of August 2014, it was stated that the 14th of January 2014 was the first and last incident of discrimination.    

8.4.5    The complainant advised the hearing that he attended the respondents Chief Medical Officer on a number of occasions during his three year period of sick leave.  The respondent at the hearing agreed that the complainant had been absent from work for over three years and stated that during this time he was seen by the respondents CMO on nineteen occasions.  

8.4.6       The respondent advised the hearing that the CMO was not a treating doctor but saw the complainant to assess his fitness to work.  The respondent advised the hearing that the complainant was being treated by his GP who put him on painkillers and anti-depressants following his accident as he was suffering from back problems and depression.   Numerous medical reports were submitted in evidence.   The respondent’s CMO Dr. S told the hearing that the complainant’s sick leave entitlements were exhausted after six months but that she applied to Human Resources on eleven occasions to have his sick leave extended as he was a young man and she hoped he would make a recovery.

8.4.7    Witness for the respondent, CMO Dr. S advised the hearing that the complainant was on painkillers to manage his pain and on anti-depressants for his depression.  Dr. S told the hearing that she had received some medical reports in from the complainant’s consultants but that he refused to provide her with other reports including a report from his psychiatrist.   Dr. S told the hearing that the complainant was on Lexipro and Lyrica two very strong medications for his depression and pain.    Dr. S advised the hearing that she had seen the complainant on 19 occasions over his 3 years absence from work and described to the hearing the complainants physical state and his mental state as he presented upon his visits to her.   Dr. S told the hearing that she first saw the complainant three weeks after the accident and that he appeared to be in significant pain with limited movement in his upper body.   Dr. S went on to state that the complainant at later visits had slightly better mobility but that he also limped when walking and that he also found it uncomfortable to sit for longer than fifteen minutes and that he instead had to stand or lean during his visits to her.    Dr. S at the hearing read through contemporaneous notes made by her at each assessment of the complainant.    Dr. S told the hearing that she had during her assessments of the complainant carried out checks such as asking him to turn his head from left and right and to try and bend down and touch his toes.   She stated that he had limited movement in his neck and upper body.  Dr. S advised the hearing that she and the complainant discussed whether and when he would be fit to return to work and from those discussions it was clear that the complainant had formed the view that he would not be able to return to work as a bus driver.   Dr. S stated that by November 2013 the complainant no longer wished to discuss returning to work and at their last visit he told her to ‘do what she had to do’.  

8.4.8    Dr. S stated that the complainant towards the end of 2013 had become resigned to a belief that he would never be well again.     The complainant at the hearing could not remember the details of some of his visits or conversations with Dr. S.      Dr. S advised the hearing that employees of the respondent are entitled to 26 weeks sick leave but stated that she kept extending the sick leave period for the complainant as he was a young man with many working years ahead of him so she believed he would improve.  Dr. S advised the hearing that she had in July 2013 had a discussion with the complainant about returning to work during which he stated that he could not return to driving but that he was open to alternative duties which would not involve driving.    Dr. S advised the hearing that the complainant had told her that he would consider other non-driving duties but that he would not accept a lesser role that that of bus driver.  Dr. S stated that the complainant had told her that he would not accept a job cleaning the buses or desafing the buses if these were the alternatives on offer.    Dr. S advised the hearing that she had following this discussion contacted HR to request alternative non- driving duties for the complainant.  Dr. S told the hearing that she had requested this by letter in July 2013 and that she received a reply to this letter on 18th of July 2013 which stated that there were no non- driving duties available. 

8.4.9    Witness for the respondent and Head of Human Resources, Mr. P advised the hearing that there are very few non-driving duties and stated that they receive many requests for such duties.  Mr. P at the hearing produced a spreadsheet of requests for various alternative duties from staff members which contained details of requests received and dates of such requests.   Mr. P advised the hearing that he had received a request for non-driving duties for the complainant from Dr. S in July 2013, but he stated that there were no non- driving jobs available for the complainant at the time.    Mr. P also stated that there are currently 70 employees seeking alternative non- driving duties.

8.4.10  Dr. S advised the hearing that she had told the complainant that she was considering advising his retirement on ill health grounds at her second last consultation with him in November 2013.  She told the hearing that the complainant did not respond to this suggestion but told her to do what she had to do.     

8.4.11       Dr. S told the hearing that she arranged a further appointment for the complainant for December 2013 at which she told him definitively that she was advising the respondent to retire him on grounds of ill health.    The complainant told the hearing that he had received only 48 hours’ notice of this appointment however the respondent stated that the complainant also told them that his wife had not opened the letter when it was received and so he only saw the contents of the letter two days before his appointment with Dr. S.  The respondent advised the hearing that the complainant had been informed of the decision to retire him on grounds of ill health by letter dated 10th of December 2013 which stated that the retirement would be effective from the 14th of January 2014.

8.4.12              Dr. S advised the hearing that the complainant was not at the time fit to drive a bus due to his level of backpain and discomfort and due to the fact that he was on anti-depressants and painkillers for his conditions.  Dr. S told the hearing that the respondent had to consider the fact that a bus driver was responsible for the safety of 90 passengers as well as other road users and that it could not permit the complainant to drive a bus while on antidepressants and pain killers.

8.4.13  The complainant at the hearing disputed that he was unfit to drive while on medication and stated that he had driven his own car with his wife and child in it while on anti-depressants.   The respondent in reply to this stated that it has an obligation to the 90 passengers on a bus and to other road users and could not allow the complainant to drive a bus while on anti-depressants.   Dr. S also told the hearing that the complainant himself had told her that he had damaged his car while on Lyrica and had told Dr. S that he blamed the anti-depressants for this accident.

8.4.14  The complainant when asked if he was saying he was fit to drive a bus while on anti-depressants stated that he didn’t have the chance to find out as he had never driven a bus while on anti-depressants.   The respondent advised the hearing that despite extending the complainants sick leave entitlement repeatedly it eventually had to accept that he was unfit to return to work as a bus driver and given that there were no alternative non- driving duties available, the respondent made a decision to retire the complainant on ill health grounds.

8.4.15  The complainant submits that he should not have been retired on ill health grounds and states that he is now fit to drive a bus.   The respondent in replying to this assertion stated that the complainant in his personal injuries case submitted to the High Court swore that he was unable to work prior to the settlement of the case in October 2017.  In addition to this a medical assessment carried out in June 2016 by the complainant’s consultant anaesthetist and pain specialist concluded that it was unlikely that the complainant will return to his occupation as a bus driver.   In addition, his orthopaedic surgeon who reviewed him in August 2017 concluded that the complainant was unlikely to recover from his injuries.

8.4.16  The complainant also submits that the respondent in looking at alternative non- driving roles should have looked at the possibility of creating a role which the complainant could carry out.  The complainant’s representative advised the hearing that the respondent was under an obligation to create an alternative role for the complainant and cited the Nano Nagle decision (2015)(IEHC 785) as authority for this assertion.  The respondent submits that the Nano Nagle case differs from the current case as the respondent in that case, the school, failed to consider if a reorganisation of work or a redistribution of tasks would enable the complainant to return to work and found that the respondent failed to properly engage with the concept of adapting the job in light of the complainant’s disability. The respondent in this case submits that no amount of reorganisation of work or redistribution of tasks would have allowed the complainant to drive a bus. 

8.4.17  The complainant’s representative further asserted that a role should have been created for the complainant and stated that the complainant would have been fit to work in a role which involved watching videos for an hour a day  or pushing paper for an hour a day.  The respondent told the hearing that it had no roles which involved watching videos or pushing paper for an hour a day.  The respondent at the hearing also argued that it was not obliged to create such a role for the complainant.

8.4.18  The complainant argued that Nano Nagle decision supported its assertion that the respondent was obliged to create a role for the complainant and that the respondent by failing to create such a role had failed in its duty to provide the complainant with reasonable accommodation for his disability.   The Nano Nagle decision referred to has since been overturned on appeal and the implications of this decision are that an employer should consider re-distribution of tasks only where the tasks are non-essential to the role.  In addition, where it is found that an employee cannot undertake the essential tasks of their role then this may be grounds for termination of employment. 

8.4.19  As stated above Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[3].   In addition, in applying the Labour Court ruling in 'A Health and Fitness Club Vs a Worker' referenced above, it is clear that there was an obligation upon the respondent in this case, in the first instance, to ascertain the level and extent of the complainant’s disability. 

8.4.20  In considering the evidence adduced in this case I note that the respondent in this case did make extensive inquiries into the extent of the complainant’s condition and did consult with him before taking a decision to retire him on grounds of ill health.      I am also bearing in mind the fact that the respondent’s sick leave policy provides for 26 weeks sick leave which the respondent in the present case extended the allowable sick leave period over and over again in the hopes that the complainant would recover and would be fit to return to work.  In addition, it is clear from the evidence adduced that the respondent’s CMO, Dr. S assessed the complainant a number of times in order to ascertain his fitness to return to work having seen him on nineteen occasions in all.   It is clear from the evidence adduced that the respondent discussed the possibility of alternative roles with the complainant who having been employed as a bus driver was now no longer able to drive due to his level of pain and discomfort and also due to the fact that he was on anti-depressants and painkillers.     The complainant has submitted that the respondent was under an obligation to create a role for the complainant as there were no alternative non- driving roles available.

8.4.21  Having regard to the foregoing, I am satisfied that the respondent in this case did make appropriate enquiries to ascertain the extent of the employee’s condition on an ongoing basis over a period of three years and sought continuously to assess the complainant’s fitness to return to his job as a bus driver.  In addition, the respondent in this case also sought to provide the complainant with an alternative role but concluded that there were no non- driving roles available.  In addition, I note that the complainant did advise the respondent that he would not accept any alternative role which was beneath his current role and that he would not accept a role which involved cleaning or desafing buses.  It is clear from the evidence adduced that the respondent in this case engaged extensively with, consulted with and advised the complainant before coming to the conclusion to retire the complainant on grounds of ill health.  

8.4.22  The respondent has submitted that the complainant was retired on grounds of ill health as he was not fit to return to his job as a bus driver.    In addition, the respondent has stated that no amount of reorganisation of work or redistribution of tasks could have allowed the complainant to return to his role as a bus driver.  It is also clear that an essential element of the complainant’s role is that of ‘driving a bus’ and that the totality of the evidence adduced demonstrates that the complainant was deemed to be unfit to drive a bus at the time the decision was taken given his injuries and given the fact that he was on painkillers and anti-depressants as a result of the road traffic accident.  In addition, evidence has been adduced to support the claim that the complainant after this decision was made continued to be unfit and/or unable to return to work as a bus driver.    The respondent in support of this argument presented to the hearing extracts from the complainant’s Personal Injury claim in relation to the accident as presented to the High Court in October 2017.   These extracts indicate that the complainant at the time could not see himself returning to work.

8.4.23  The evidence of the respondent’s CMO, Ms. S is that there was no significant improvement in the complainant’s condition over a period of three years after his involvement in a road traffic accident and that he was also on pain killers and anti-depressants which the respondent submits makes him unfit to drive a bus. 

Section 16(1) of the Acts states that

Nothing in this Act shall be construed as requiring any person to…. retain an individual in a position, ….if the individual ....

(b) is not fully competent and … 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.

8.4.24  The respondent in this case when faced with an employee who was out on sick leave for over three years, who was on medication for pain and depression and who showed no prospect of being able to return to his job as a bus driver took a decision to retire that employee on grounds of ill health.   This decision was taken after three years of sick leave and regular assessments by the respondents CMO who saw the complainant on 19 occasions during the relevant period.  In addition, the complainant’s own views expressed to the CMO and in the course of his Personal Injuries claim support the conclusion that the complainant was unable to return to his job as a bus driver. 

8.4.25   I am satisfied form the totality of the evidence adduced that the respondent in this case complied with its obligations under Section 16.   In the circumstances and having regard to the totality of the evidence adduced in this case I find that the respondent did not discriminate against the complainant on the grounds of his disability in relation to the termination of his employment and that the respondent did not discriminate against the complainant in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts. 

9.         DECISION OF THE EQUALITY OFFICER

9.1       I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015, I issue the following decision. I find –

that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16 of those Acts, and  

 
that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of the termination of his employment.

_____________________

Orla Jones

Adjudicator/Equality Officer

1st of May 2018

[1]  [2004] 15 ELR 296
[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
[3]  [2004] 15 ELR 296