ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017854

Parties:

	Complainant	Respondent
Anonymised Parties	A Station Officer	A Public Body

Representatives

Gerard Kennedy, Advocate SIPTU

Des Ryan B.L. instructed by Ronan Daly Jermyn Solicitors

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00023042-001	05/11/2018

Date of Adjudication Hearing: 4 June 2019 and 4 November 2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

On 5 November 2018, SIPTU on behalf of the complainant, a retained fire fighter/Station Officer submitted a complaint of discrimination and failure to grant reasonable accommodation on the grounds of disability. The Respondent, a public body has denied the claim.

Both parties made written submissions. The complainant was represented by Gerard Kennedy, Advocate, SIPTU and the respondent by Des Ryan, BL.

On 24 May 2019, in response to pre-hearing submissions from the respondent, I wrote to the Union seeking an outline submission in the case.

I have used my discretion in anonymising this decision considering the sensitivity of the subject matter.

The Union submitted details of the complainants P60s as requested post hearing and the Respondent submitted 3 Safety statements which expanded on the roles and responsibilities of the complainant’s position.

Summary of Complainant’s Case:

On 7 November 2018, the Union submitted a complaint of discrimination on grounds of disability, section 6(2)(g) of the Employment Equality Act against the respondent. The most recent date of discrimination was referred as 19 June 2018.

The complainant had been employed as a Retained Fire Fighter since September 1991 and in June 2017, was promoted to the role of station Officer. She had been in receipt of €1600 retainer fee per month which carried through her first 6 months of sick leave. The complainant presented as having difficulty in claiming social welfare payments at time of hearing. She later qualified this by declaring a private income.

The complainant was diagnosed with bi lateral hearing loss in March 2017 and wears hearing aids in both ears. She cannot absorb sound.

The Complainant submitted that she had not been granted reasonable accommodation in the case of her hearing deficit and this amounted to direct discrimination. By outline submission, the Union provided a historical context to the claim.

The complainant attended Occupational Health on 27 September 2017 for the purposes of a bi annual hearing test set out in the Medical Examination Occupational Health Scheme for members of the retained fire service, 2005. The service sets a grading for hearing tests as H1to H5, where H3 is the desired scoring for fitness.

The complainant was not permitted to wear her bi lateral hearing aids for the test and scored a H5 which was lower than required. She was not aware that she would not be allowed test with hearing aids as she was aware that her predecessor wore hearing aids with the knowledge of her employer. The Union attached a hand-written script from this gentleman which inferred that the public body were aware that he needed hearing aids in his final year.

The complainant could return to work at that time and went on to undertake on the job training which required medical fitness.

Later, 23 January 2018, at a Station Officers Meeting, with Mr A, the Chief Fire Officer, the group were informed for the first time that fire fighters were not permitted to use hearing aids while on duty.

The complainant attended another hearing test with an Audiologist on 4 April 2018 and was advised in advance that testing would be achieved without the hearing aids. The complainant obtained a H5 level score.

On 12 June 2018. The complainant was invited by Mr B, Assistant Chief Fire Officer to attend a meeting, where she understood that she was “to be stood down “the next day. As the complainant required representation, she sought a deferral of the meeting. It was re-arranged for 20 June 2018, but as her representative was on annual leave, she requested a postponement.

The Complainant received a letter dated 20 June 2018 which “stood her down “on sick leave. The complainant sought to counter this by:

“I want to continue with my light duty work at the fire station, cleaning and maintenance of the station, Pre-incident planning, office duties, writing up call and opening emails and answering emails and safety bulletins “

This has never been addressed by the respondent.

The parties subsequently met on 30 July 2018. The complainant and her representative and Mr B and Human Resource Manager. The complainant had submitted medical approval of her fitness to continue as a fire fighter.

The complainant sought a risk assessment which prohibited the use of hearing aids. Ms B, Human Resources Manager confirmed that the respondent had concerns that the hearing devices would melt in proximity to the fire. The union reflected that firefighting was not central to the complainant’s role, rather she attended the fire incident and co-ordinated the fire fighters present.

In August 2018, the respondent confirmed that the complainant had not passed the hearing test set and the complainant was to continue on paid sick leave (retainer only) until 19 December, 2019 when the complainant would be requested to test again .If this was unsuccessful , a final period of 6 month sick leave would follow to permit the complainant to pass her occupational mediacl assessment by June 2019 .If this remained outstanding at this time , employment would cease on medical grounds.

The union appealed the decision to stand down the complainant. Some delay followed, and the respondent agreed to providing an Independent Medical Assessment. The Union expressed reservation that this merely addressed the Industrial Relations aspect of the case and the observed discrimination would be referred to the WRC. The respondent denied discrimination and offered to meet to discuss further.

The complainant submitted a private Audiology Report dated 20 December 2018, which reflected that the complainant had a mild to severe bilateral hearing loss than had gone unchanged from the previous year. The hearing aids were determined to function at normal hearing level.

The complainant attended a further Occupational Assessment on 8 January 2019 and undertook a hearing test with hearing aids inserted on 17 January 2019. Feedback from the Audiologist at that point indicated that she now met the standard required but it was not the Audiologist decision to allow the hearing aids during her work as that decision rested with the employer.

The complainant attended Occupational Health Physician on April 1, 2018 and Dr OHD confirmed that the complainant had scored H5 without wearing hearing aids and H4 while hearing aids were inserted. The H3 standard had not been met.

“ The hearing standards for firefighters that we use are based on the UK guidelines for medical and occupational evidence for recruitment and retention in the fire and rescue service .Firefighting and control room staff that meet H2 standard would normally be considered fit for the role .The guidelines also state that it is unlikely that individuals with hearing below the H3 level would be safe on the fire ground or in the control room .”

On April 10, 2019, the respondent wrote to the complainant and confirmed that she was still medically unfit to carry out her work as a Fire Fighter and offered to meet to discuss.

The complainant sought a repeat Audiology test, this was not sanctioned, and the complainant was requested to submit whatever medical she had as the Occupational Health dept had not sanctioned a repeat test. The Complainant contended that she was being treated differently as others in her service were permitted two medicals to assist them in reaching the determination of medical fitness.

On 25 April 2019, the complainant informed the respondent that she had acquired new hearing aids and her hearing had” improved immensely” and prevailed on the respondent to allow her to re-test on foot of her 28 years’ service.

“please stop putting up barriers in my way and just make some reasonable adjustment for me “

The complainant obtained an independent assessment of the Audiologist report which indicated that she had attained a score between H2 and H3 on the scale. She assumed that Dr OHD had made a mistake and sought to return to work. The respondent disputed the recalculation of the heating scores from that used in military calculations

A meeting was arranged for May 30, 2019.

Argument:

When the complainant was stood down from her position and placed on sick leave, she possessed a disability as defined by section 2 of the Act, she had partial bi lateral deafness. The respondent was properly on notice of this development. The complainant was placed in a financially disadvantaged position in the aftermath of this decision as her 6-month sick pay did not include allowances or payment for fire calls.

In referring to Article 5 of Directive 2000/78 ,the Union relied on the provisions of section 16(3) of the Act .They contended that the respondent had not provided the complainant with reasonable accommodation as the only measure adopted was to remove her from the workplace .The respondent had not conducted a risk assessment and the union submitted that Hearing aids in Servicing Firefighters were permitted in Cumbria , UK . London had developed an alternative Functional hearing test. The respondent had not reached out to explore these initiatives.

The Union drew a comparative analysis between a neighbouring public body and the respondent service. They submitted a hand-written script dated 27 May 2019 which inferred that a retired firefighter had worn hearing aids for 37 of his 39 years’ service with his employer’s knowledge.

The Union went on to make extensive arguments under Section 16(3) of the Act. The Union submitted that the respondent had not taken adequate measures in the face of the complainant’s disability and this amounted to discrimination. The respondent had not paid attention to the complainants historical scoring of H4 going back to 2008. The respondent had not objectively justified their position of disallowing hearing aids during firefighting and had not drawn on a comparative practice in the UK, DEC E2011-184 Corbett v Bus Eireann, Cregg Labour Solutions ltd T/A Cregg Group and Gerard Cahill EDA 1634, Pat McDonnell Paint Sales ltd and Denis Flynn EDA 1412

Evidence of the complainant:

The complainant commenced work in 1991 where her role centred on attending the fire station and the fire. As Station Officer, on the site of the fire she delegated to a crew of 10 at the Fire station who attend fires in different formations.

The complainant submitted that she had experienced a gradual loss of hearing until she received a proper test in 2017, she was prescribed two hearing aids. She told the Adjudication hearing that she had engaged in hearing testing for her employer without those hearing aids as she was informed they were not permitted.

She recalled her first hearing test in September 2017 and submitted that while her score had been low she had functioned in her role and continued her training, including attendance at 11 fires before she was stood down in June 2018. She feared losing her position.

In January 2018, she first learned that hearing aids were not permitted at work. she had asked Human resources about this and they re-affirmed this position. The complainant acknowledged that she did not expect to see an improvement in her condition.

The complainant understood that she had passed the January 2019 test as the Audiologist had informed her of this verdict and was surprised when Dr OHD failed her.

By then, April 2019, she had sourced a one-month trial of hearing aids which cost €4,000 and sought to be re-tested with these. She was refused this opportunity and returned the trial aids.

The complainant explained that in a noisy fire situation, everyone’s hearing is reduced, and further reliance is placed on Hand signals. During a fire, hearing defenders are issued. These are small plugs which are placed into an ear.

During cross examination, the complainant accepted that she worked in a Frontline Safety Critical setting and explained that the nature of her role involved delegation. She did not action the hose or direct fire fighting but oversaw it all the time. she was not, she said “in the thick of the fire “but was trained to go in.

Her role of station Officer involved 50 to 100 calls annually and ranged from chimney fires to road traffic accidents.

She denied that she held the sole role of incident commander and confirmed that she had co-operated with her employer in the management of her condition. Any delays/ postponements in meetings and assessments were attributed to her family and she had readily made herself available for meetings arrangements.

When asked about responding to the Pager she replied that just because the Pager goes off, it is not a guarantee that fire attendees attend the fire scene.

The Complainant submitted that she had scored H4 as far back as 2007 and had been deemed fit at that time. The complainant denied that she was obliged to notify the respondent of her hearing loss earlier than the bi annual medical in September 2017. She confirmed that she had mentioned the hearing aids to the OH Nurse.

She confirmed that she was in possession of high-powered hearing aids in May 2018 and this anchored her fitness for the job, but it didn’t matter as she was faced with a blanket ban on hearing aids. The complainant exhibited some detail on this hearing aid and submitted that it had been cleared for use in potentially explosive workplaces such as mines, factories, rigs water and chemical processing environments.

Dr OHD had informed her that she had “slightly failed “in the Audiologist Test.

By May 30, 2019, the complainant confirmed that she did not realise that she had to ask for accommodation with her high-powered aids as she had already asked for reasonable accommodation.

The complainant went on to clarify that she had worked as a hairdresser until 2013 but had worked privately in the role since then. She submitted that the whole issue of being kept out of work for such a long time had placed her under financial pressure. She was frustrated by her exclusion. Her advisors had confirmed that she was fit to work.

The complainant confirmed that she had not requested any further clarification from Dr OHD as she understood that she had passed the hearing test.

The complainant confirmed that she estimated that the suggested light duties advanced in her June email constituted 30% of her job. She stated that her condition of 3-year history was unlikely to improve but that the high-powered hearing aids had helped her. she was not aware of any opportunity to redeploy and she had attended over 200 fires.

The complainant has suffered significant financial loss

In conclusion, the complainants Advocate submitted that the respondent had not taken adequate measures to accommodate the complainant’s disability and her suggestion of light duties had not been responded to. Objective criteria had not followed the blanket ban on hearing aids. The complainant had been off paying from December 2018 and could not earn a living and had been discriminated against. she had difficult in applying for DSP payments and had submitted details of her last P60s which reflected that reduction in 2018.

Summary of Respondent’s Case:

The Respondent operates a Public service, a constituent of which is the respondent Fire service.

The Respondent accepted that the complainant possessed a disability, however denied all claims alleging discrimination on the grounds of disability, failing to give reasonable accommodation and unlawful treatment in her conditions of work.

Preliminary Issue:

The respondent raised a Preliminary issue that the complainant had not raised the required submission in line with the WRC procedures for Investigation of Employment and Equality complaints. The Respondent argued that the complainant had not set out the of her claim in her early submission and this had not been assisted by the late submission of a submission shortly before the hearing.

Counsel argued that the complainant had failed to observe the requirements of the Guidelines of the WRC.

Substantive Case:

The Respondent operates a retained fire fighter service rather than a Full-time service. The complainant is employed as a retained fire fighter and works as a station officer. This is a far-ranging role.

The respondent exhibited an agreed Occupational Health scheme dated July 2005. This scheme sets out the frequency of medical examinations for retained fire fighters on a national level. Employees aged between 50 and 54 are sent for medical examination every two years.

“To ensure that fire fighters are capable of safely and efficiently undertaking the tasks which they are required to perform, it is necessary put in place arrangements for ensuring that fire fighters are healthy and fit. This is in the interest of the staff themselves and their colleagues, the authorities who employ them and the public they serve “

The standards of hearing required by the respondent were advised by the respondent Occupational Health Advisors and based on the standards put forward by the Chief Fire Officers Association in the UK. The Occupational Health scheme provided for an obligatory self-reporting in case of physical impairment

The Respondent explained the significance of the various gradings of H grade scoring of hearing capacity. For entry grades, H2 serves as an eligibility standard on recruitment. H2 to H3 are required to undergo capability assessment before being offered employment .H3 serves as a barrier to recruitment. In the case of existing fire fighters, those who fall below H3 are required to have an Individualised capability assessment before any decisions are made on redeployment or retirement.

Counsel for the respondent outlined the chronology of the complainant’s engagement with the Fire service occupational health scheme.

27 September 2017: Bi annual Occupational Health Review determined that the complainant lacked an acceptable level of hearing required for active firefighting duties.

While the complainant eventually attended an Audiologist arranged by the respondent on April 4, 2018, there were many delays, postponements and cancellations attributed to the complainant in this regard.

The respondent wrote to the complainant on 19 April 2018 inviting her to discuss the Audiologist results at an Occupational Health review on 9 May 2018. The meeting was eventually set for 30 May 2018.

On 5 June 2018, the Occupational Health Physician confirmed that the complainant had scored a H5 at Audiology which was below the required standard and required further engagement with the employer.

A meeting to that end was arranged for 15 June, the complainant was unable to attend on that date or on the reconvened date of 20 June 2018.

This prompted the respondent to write to the complainant dated 19 June 2018.

“…. X have no option but to place you on sick leave from Wednesday, 20 June for a period of 6 months pending being medically certified fit to continue in service. during this 6-month period you will be paid retainer only.

This six-month period of leave will end on 19 December 2018.If you have been unable to pass the occupational medical assessment by that date, the X will place you on a further, final, six-month period of unpaid leave, to pass the occupational medical assessment. This further period will expire on 19 June 2019.

If you have not passed your occupational medical assessment by 19 June 2019, the X will have no other option but to deem that your employment will cease on that date, based on being unfit for work.”

In response, the Union raised a grievance on behalf of the complainant and the parties engaged on 30 July 2018. Handwritten notes were retained.

The Respondent re-affirmed the June 2018 letter and the complainant was represented by the Workers’ Rights Centre from September 2018.

The Respondent submitted that while the Occupational Health scheme does not specifically mention hearing aids, they are not allowed on health and safety grounds as their effectiveness cannot be guaranteed in a frontline emergency service.

In response to the Unions request to appeal the 19 June letter , the Respondent offered an opportunity to appeal the Medical Assessment by arranging an Independent Medical Assessment .This was not taken up by the Union who referred the claim for discrimination to WRC on 5 November 2018 as they maintained that the respondent had not advanced an objective justification for determining that the use of hearing aids was not compatible with the complainants role in the Fire service .

The Respondent arranged to have the complainant re test in April 2019 as a means of leaving no stone unturned in seeking to facilitate the complainant. The complainant scored H4 with heating aids and H5 without them.

Counsel then set out the reasoning for the health and safety concerns in relation to hearing aids which centred on sound and touch. He submitted that the respondent has an obligation to protect the health and safety of all involved and the respondent considered that health, safety and operational concerns associated with the use of hearing aids in the fire service far outweigh the benefits of allowing hearing aids to be used.

1. Incident commander or firefighter may not be able to determine changes in the incident to raise warnings.

2. ~Pre-existing ear protectors could not be applied if hearing aids were in place, High volume of noise may result in the reduction of hearing aid performance

3 Breathing Apparatus may reduce the hearing aid performance

4 water may affect the hearing aids

5 A fire fighter may forget to insert aids, or the hearing aids could malfunction or become dislodged

6 hearing aids could clash with tele communications

In referring to the United states standards for firefighters. Hearing aids are not considered reasonable accommodation.

The Respondent arranged for the complainant to be retested by the Respondent appointed audiologist in April 2019. Dr OHD reviewed her findings taken with and without hearing aid insertion and determined that the complainant had not attained the desired H3 result. The complainant, through her privately sourced Audiology countered this and submitted that a mistake on scale conversion had occurred.

The Occupational health advice followed the UK guidelines which differed to the military scale relied on by the privately sourced Audiologist.

The parties met again on 30 May 2019 with a view to exploring reasonable accommodation sought by the complainant. The complainant confirmed that she wished to work with hearing aids and sought the objective justification which out ruled hearing aids. The respondent had already addressed the reasons and could not progress the matter.

The topic of a requested risk assessment was discussed, and the respondent advised that it was not possible to recreate a live scenario of a fire incident. The respondent was not prepared to put the life of a fire fighter in danger in relation to such a risk assessment.

Risk Assessments are normally predicated on:

1 Equipment viability, whether certified.

2 projected failure of work systems

3 tests in live environment

The respondent has respected that the complainant has not been deemed medically fit to work as she has not attained the H3 score necessary for serving Firefighters. Hearing aids are not accepted. No other reasonable accommodation has been sought or advised.

In addressing the complainant’s contention that she had been denied two repeat medicals and thus was being treated differently from her colleagues, the respondent clarified that two repeat medicals were allowed in a Physical fitness test and not two repeat medicals.

Counsel submitted that the respondent had gone to extensive lengths to accommodate the complainant in her work. The respondent was bound to accept the advice of external agencies with specialist knowledge and re-affirmed the importance of the complainant attaining a H3 scoring, which had eluded her to date.

In referring to the US Comprehensive Occupational Medical Programme for Fire Departments, Counsel submitted that hearing aid use or cochlear implants are not considered a reasonable accommodation due to

1 FDA regulations require that all aids be labelled with a statement that hearing aids or implants do not restore normal hearing.

2 They don’t allow a person to hear or discriminate acoustic cues or radio broadcasts

The respondent submitted that they did not have knowledge of the complainants predecessor having been allowed to work with hearing aids .The respondent did not accept the complainant submission that she was permitted to work in the service post her first H5 scoring in September 2017 .The lag in time , September 2017 – June 2018 was dedicated to the respondent obtaining an individualised capacity report from an appointed Audiologist .The complainant herself had contributed significantly to this delay .The respondent also disputed the evidence adduced on the Fire fighter who was referred to as having hearing aids throughout his tenure at a neighbouring Fire service.

The respondent distinguished the facts of Mr C v Bus Eireann DEC-E2007-046, where the complainant in that case disputed that he had a hearing problem and the question of hearing aids, central to this case did not arise.

Counsel quoted from the decision in relation to whether driving could be deemed a hearing critical job?

“If it is hearing critical, then the respondent must reassure itself that its drivers attain the standard set in accordance with best practice “

Counsel went on to address whether the respondent had provided reasonable accommodation within the meaning of S16 of the Act.?

In quoting from the Labour Court in Humphries v Westwood fitness Club[2004] 15 ELR 296,where the employer , at a minimum is to ensure that he or she is possession of full facts concerning the employees condition …… that the employee must be allowed an opportunity to influence the employers decision .Two stage enquiry on factual position of capability followed by application of Section 16(3) of the act “…. What if any special treatment or facilities may be available whereby the employee can become fully capable ….”

Counsel submitted that the respondent had complied with the direction in Westwood and evidence had disclosed that the complaint was not fully capable of undertaking her position as a Firefighter by reason of not reaching the “required standard of hearing”

The Respondent confirmed that they had reasonably accommodate the complainant in being tested with hearing aids inserted, however, this had not resulted in an attainment of H3, the required standard of hearing. The complainant would not have been “fully capable “of undertaking her duties, having regard for operational and safety critical risks.

The respondent was satisfied that no reasonable accommodation measure was available for the complainant to continue her duties as a fire fighter in an adequate fashion. It did not fall to the respondent to create a new job for the complainant and deferred to Nano Nagle school v Daly [2018] IECA 11

Evidence of Mr B, Assistant Chief Fire Officer.

Mr B had supervisory management of 6 Fire stations in a named geographical area and had worked with the respondent since 1999.He outlined the role and function of the Station Officer which described as extending far beyond incident commanding and a requirement to “roll up sleeves and get stuck in “in case of low attendees paints a generic picture to the role. He described the requirements of Hose operation as hazardous.

Mr B submitted that he had no reason to believe that the complainant was other than fit prior to her Medical. He had no awareness that the complainant had commenced wearing hearing aids and only became aware around the time of the Audiology review in April 2018.

He confirmed that there was no provision for light duties at the respondent service and the duties proposed by the complainant as a basis for her return constituted just 5 % of her overall role and there was no possibility of carving out a new job for her.

During cross examination, he confirmed that the role was much broader than that suggested by the complainant’s representative. He outlined that the role could not be reduced to Incident Commander and the role carried a post incident responsibility also. The complainant would be required to provide back up.

He confirmed that a risk assessment could not be executed as a simulated fire was impossible to create. He explained that H1 and H2 referred to natural hearing loss on age and H3 was a compromise. He affirmed that UK standards drove the goal of H3.

Evidence of Mr A, Chief Fire Officer (CFO)

Mr A had been Chief Fire Officer for 10 years and had extensive experience in Fire services. He managed fire services inclusive of Operations, fire Prevention, Major emergency and Civil defence.

He contrasted the Irish Fire service with the UK service which has a much larger and full-time scale core service. He submitted that this model allowed more scope for accommodation as service was structured on 365 days on 24/7 basis.

The model in Ireland consists of 10 fire fighters being on call but perhaps only 5 might respond to the call up, thus relying on the back up of several brigades to manage a fire ground. The officer in charge may have several station officers reporting in. He emphasised that while dependent on low numbers, a wider role is expected in firefighting, which explains that a station officer may be requiring to get “stuck in “.

The H scale is universally accepted as the recognised tool to measure hearing capacity and explained that the Chief Fire Officers of UK had come up with a Guidance Document and 10 years ago this had been adopted by the Ireland commensurate grouping of CFOs.

Management of detection of testing lay with the respondent Occupational Health service and H3 is deemed the acceptable scoring for existing fire fighters to ensure safe practice on the Fire ground.

Mr A gave some detail on the difference between the C scale for noise and H scale for Fire. He also confirmed that a blanket ban on hearing aids prevailed as there were too many variables listed as

Temperature. hearing aid could dislodge

Hearing defender interface with the hearing aids

Radio channel interference

Absence of certification that hearing aids were of certified standard for use in fire management

He stressed that an incident commander had to listen to the sound of the fire and the focus was on safety for everyone.

In answering the Complainant representative, Mr A confirmed that use of hearing aids was prohibited nationally. He accepted that hearing aids were permitted in Cumbria in UK. He submitted that the London test was under development, work in progress and accepted H3 scoring. There was no surrogate testing available.

Mr A reaffirmed that the real difficulty in reasonable accommodation was that appropriate measures of permitting hearing aids were deemed “too dangerous” and added that there was no scope to redeploy the complainant as the Fire Service was viewed as a separate entity in the respondent service.

Evidence of Dr OHD. Occupational Health Physician

Dr OHD has been a specialist in Occupational Health for over 20 years. The complainant was referred by Human resources and not by her GP. She first saw his colleague, Dr OHD A and latterly he reviewed the complainant. He was aware that Dr OHDA had referred the complainant to audiology where she was deemed not to have met the H3 standard required at the respondent service.

The category C3 and C2 referred to measurement of noise at work and was a separate criterion to the H range and not applicable to the complainant. He submitted that both high frequency and speech frequency were required in testing. He outlined that the criteria provided in the complainants private testing were not compatible with the H scale and while he did consider the report, he considered and preferred the H4 result with aids inserted and H5 without aids. He discussed the Audiologist report with his colleague and consulted the UK guidelines relied on by the respondent.

The complainant had sought a follow up hearing test, but Dr OHD submitted that he did not have a medical reason to retest the complainant and worked on the April 2019 converted test results. He did not have cause to make any further recommendation in the complainant’s case.

During cross examination, Dr OHD confirmed that the respondent did not accept hearing aids. He could not recall the complainant having new hearing aids as the private report had not reflected that information. If further evidence had been presented by the complainant, he would have considered it. He contended that the onus was on the complainant to provide this information.

With reference to UK, Dr OHD claimed that practices varied between service but hearing aids were not permitted by the respondent.

In conclusion, Counsel for the respondent stressed the safety critical nature of the fire service as an imperative which informed the standing down of the complainant. The safety concerns surrounded life and death. The complainant had not been medically cleared to return to work.

The respondent had petitioned the National Advisory body for inclusion of the “use of hearing aids” in the scope for a proposed review of Occupational Health services for Fire fighters in November 2018. There had not been any further developments in that regard.

The respondent had made its reservations on hearing aids known to the complainant and understood that they had presided over a scrupulously fair process where meaningful consultation had occurred. The use of hearing aids was not authorised nationally, and the respondent had allowed the complainant to test from two bases, hearing aid inserted, and hearing aid omitted.

The respondent submitted that the appropriate measures referenced in Section 16(3) of the Act were to clearly enable a full participation an could not been seen to be applicable here in the face of the H4 score .H3 had not been secured and it was impossible to create a new job for the complainant.

The respondent introduced a copy of 2003 Review of Retirement Age, Report of Expert Group which reflected the breadth of the station officer job which accorded the “same minimum physical standards “The report went on to outline the obligations of an employee to report hearing impairments. Counsel reaffirmed that the respondent had detected the hearing impairment experienced by the complainant rather than any declaration by the complainant.

The parent and ancillary safety statements had set out the framework of safety pertinent to the respondent and the complainant had recorded her signature as understanding these documents in January 2015 and March 2017.

Findings and Conclusions:

I have considered the oral, written submissions and case law advanced by the parties. I have also reflected on the witness evidence adduced. I have been asked to decide whether during her employment as a Fire fighter/Station Officer, the complainant was the subject of discrimination in conditions of employment and reasonable accommodation on the grounds of disability?

The Respondent raised a preliminary issue:

The respondent submitted that the WRC rules on formation and submission of the context of the case had not been followed by the Union .The Union had submitted a brief outline of the claim in November 2018 but had not augmented that outline before the first hearing day was announced .I wrote to the Union requesting a submission on 24 May 2019 and I received same one week later when it was shared with the respondent .

Both parties were familiar with the WRC rules on submissions. In a case of Employment Equality Law, the burden of proof rests with the complainant and it is reasonable to place the respondent and WRC on notice of the background and outline arguments /case law which may be relied upon. I find it of enormous benefit to have submissions from both parties well in advance of the hearing date to assist me in conducting my investigation. Therefore, the best practice standard centres on adherence to the WRC rules on Investigation and Hearing procedures.

I realise that oral evidence and cross examination are central components of the hearing and these cannot be condensed in advance of the hearing , however, two well prepared submissions anchor an equality of arms from the outset and variations on this approach can lead to expressions of irritation which creep into the very valuable hearing time and can form an unnecessary distraction from the facts of the case .

I would have preferred to have received both submissions much sooner in this case. I appreciate that the respondent had to await the complainant’s submission to formulate their response. However, I allowed time for both parties to be heard and listened carefully to all arguments each party wished to advance, therefore, despite the departure from best practice, I don’t believe either party was disadvantaged or prejudiced in the long run.

This concludes my consideration of the preliminary issue and I will now progress to consideration of the substantive case.

Substantive Case:

The complainant lodged a complaint of discrimination on 5 November 2018 which referred to the most recent date of discrimination as 19 June 2018, the date on the letter which confirmed the complainant’s transition to sick leave. The complainant has not returned to work.

During both days of hearing, the complainant continued to be classified as “stood down “from her position. In my examination of the facts of the case, I have considered the period June 19, 2018 onwards as Section 77(6)(a) of the Act provides that discrimination occurs

If the act constituting it extends over a period, at the end of the period

Therefore, it is important that I consider this period prior to my reaching a decision in the case.

As a precursor, I must be satisfied that the complainant is covered by the ground of disability outlined in Section 2 of the Act. Having listened very carefully to both parties on this point, I am satisfied that both parties accept that the complainants hearing loss complied with the definition of disability found in section 2(1) (c) of the Act.

For my part, I was drawn to the early Occupational Health Physician report compiled by Dr OHD A dated 3 October 2017, where the Physician suggested that an Ear Nose and Throat (ENT) Specialist may be required to assess if “the hearing loss is permanent or treatable “.

This raised some doubt that the condition may have been of a temporary nature. However, the complainants own evidence pointed to a long-term condition as she said that she could not absorb sound and did not expect her previous level of hearing to return. This was corroborated by Dr OHD when he confirmed that the condition of the baseline hearing loss was so pronounced that he did not have cause to make a further recommendation in the case.

While I note from the complainant’s Occupational health documentation, that hearing difficulties were identified in 2007 ,2008 and 2014, I am satisfied that the complainant experienced a confirmed hearing loss from March 2017, when she was prescribed bi- lateral hearing aids. This constitutes an existing disability in accordance with section 2(1)(c) of the Act.

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

Discrimination on grounds of disability is defined in accordance with section 6(2)(g) of the Act

(g) that one is a person with a disability and the other is not or is a person with a different disability

Section 8(1) (b) prohibits discrimination in relation to conditions at work.

In the 2012 addition of Employment Equality Act, Bolger, Bruton and Kimber, the authors addressed the topic of reasonable accommodation in the Act

Section 16 of the Act addresses the nature and extent of employer’s obligations in certain cases in the employment sphere, the obligation of reasonable accommodation requires employers to remove barriers and adjust the work environment or structure, in order that disabled individuals are placed in a similar position to their non-disabled counterparts. It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace. In this regard, it requires an individualised approach by employers. It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary. It involves the person being involved in an interactive dialogue with the employer to search for the right kind of accommodation needed in the overall circumstances of the case.

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.

….

Section 16(3) provides that :

For the purposes

(3) ( a ) For the purposes of this Act 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 ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

‘ 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;

Section 85 A of the Act sets out the required burden of proof in this case.

Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The complainant was placed on compulsory sick leave on 19 June 2018 because of securing a H5 level in a hearing test. The respondent deemed this scoring to be “below the accepted standard required “

I have already identified the complainants hearing condition as a disability and I now determine that she has satisfied the prima facie test for discrimination by raising the fact that her transition to sick leave was informed solely by her hearing loss.

I am now required to carefully consider the Respondents submitted defence advanced under Section 16(1) of the Act.

The Higher Courts have been engaged in this aspect of the Act most recently in the Supreme Court Decision of Nano Nagle School v Marie Daly [2019] IESC, which clarified the duty imposed by Section 16 of the Act.

The primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a case, to enable the employee to continue in employment. This includes an obligation to consider relieving the disabled employee of duties she cannot perform but must not following an evaluation place a disproportionate burden on the employer.

The obligation to provide reasonable accommodation does not extend to creating an entirely new job. An employee with a disability must be fully capable of performing the duties of the position after it is modified by the application of reasonable accommodation, which can relieve the employee of the requirement to perform certain duties which she cannot perform.

In the instant case, the respondent opened the signed terms of agreement which governed the Occupational Health Scheme for members of the retained fire service, July 2005. The respondent employs 204 Fire Fighters and outlined the safety critical nature of the services. They also outlined the depth of the complainant’s role in an ancillary safety statement.

The respondent submitted that they had followed the above scheme and had taken the complainant as an individual and permitted capability testing up to the point where her base line hearing capacity with hearing aids and without hearing aids was variant on the respondent standards and she could no longer be viewed as capable to fulfil her safety critical role.

The respondent submitted that the complainant had ignored her obligations to self-report her hearing loss much earlier than when the respondent occupational health physician officially detected and reported on it in October 2018. For my part, I agreed with this pronouncement and cannot accept that as hearing aids were not delineated in the self-reporting column, the complainant did not believe that she was obliged to report this. The self-reporting column provides that hearing impairment must be reported immediately. I find that an employee of the complainants long standing, and seniority had a duty of candour in this regard that she did not honour. She had been provided with bi lateral hearing aids in March 2017, this ought to have prompted an engagement at least under the terms of the Agreement.

However, I also found that the complainant had registered a H4 score converted from a C3 score in 2008 and the respondent submitted that they had not been aware of this. It seems likely that the genesis of this condition was longer reaching than March 2017.

I have also considered the efforts made by the respondent to follow Westwood. I am satisfied thatthe Respondent complied with the procedural requirements necessary for reasonable accommodation in that that they both inquired into the nature and extent of her condition and allowed the complainant participation in influencing an outcome.

I could not identify where the suggestion to bring in ENT consultation ended in the case. I noted that it was a positive suggestion early on but was not broadened. I am also very clear that the respondent offered the complainant an Independent Medical Assessment some 3 months post sick leave commencement, and this was not availed of. This clear offer was not availed of by the complainant, who seemed to get a little loss in the orientated process at that point.

However, the issue which divides the parties in this case is the topic of hearing aids and whether a Fire Fighter /station officer is permitted to wear them during their work.?

The complainant has an a-typical working arrangement in that she does not attend for a structured working week but is rather paid by retainer with various allowances. she does not have an hourly commitment.

There is no mention of hearing aids or H1-H5 Algorithm in the Occupational Health Agreement,2005. The Complainant exhibited a copy of a UK Office of the Deputy Prime Minister: Medical and Occupational evidence for recruitment and retention in the Fire and Rescue service. The respondent exhibited draft UK medical guidelines for Fire and Rescue service. These documents were the source of the information on the H scale and the respondent was clear that these were formally adopted by the respondent in or around 2010.

I note that the respondent went on to make a submission on the conclusions to the Report of the Expert Group on retained firefighters, Review of Retirement Age, 2003

“any fire fighter who is not fit for work when measured against key indicators presents an unacceptable risk to himself, his colleagues and the public. The potential level of unacceptable risk increases beyond the age of 50 and accelerates over the years……”

The Respondent explained that a review of the Occupational Health scheme was underway nationally and Mr A had sought the inclusion of Hearing Aids in the scope of this review on 12 November 2018. There had been no development on this and the Union were unaware that this position had been canvassed nationally by the respondent.

The respondent did not have a Policy which included or precluded the use of hearing aids during the circumstances of this case. In this I took some guidance from the facts regarding a case of perceived disability in Chief Constable of Norfolk v Coffey [2019] EWCA CIV 1061, where the complainant was a serving Police officer who requested a transfer. At her medical, it was found that she had some hearing loss with tinnitus which fell short of the national recruitment standards. The guidance stated that the standard was not binding, and candidates should be assessed individually based on the activities of an operational constable.

The compliant in the case had experienced a similar difficulty earlier which had been addressed by a practical functionality test, which she passed. However , the Police Force she wished to transfer to refused to undertake this test recommended by their medical advisor on the basis that the hearing impairment might prompt the complainant away from Operational officer to that of restricted duties , at a time of financial constraints .The UK Court of Appeal determined that the employer had applied a stereotypical assumption about the effects of disability and held that the complainant was perceived to have a disability when none was present .

The Respondent submitted that the complainant had been highly reticent in addressing the request for her to attend a hearing test, October 2017-April 2018. They argued that she was also reticent in not attending a planned discussion of the outcome of this test in June 2018. The parties went on to meet on 30 July 2018 where the Respondent via Mr B and Human Resources engaged with the complainant and set out the reasons for their reluctance to accept hearing aids in the retained fire service .This was not officially minuted .It is clear to me from this hand written note that the respondent intended on following up the reasons given by Mr A , CFO for the prohibition of hearing aids on duty as fire fighter. I also noted that the complainant had submitted a medical certificate of fitness from her own GP. The response that followed on August 10, did nothing to address the request for a risk assessment, the broader policy for prohibition of hearing aids or the GP statement of Fitness.

Shortly after this, the complainant changed representation to the Union advocacy service and the case seemed to be recast into two parts, Industrial relations and Equality. The offer made by the respondent for an independent medical which went unanswered by the complainant seems to have got lost in that transition.

I noted the complainant reliance on Corbett in this case. In that case of “slight hearing loss” the complainant had a Consultant report which supported his being able to drive on public roads and hearing aids were deemed to be of no assistance

. However, the Equality Officer was not satisfied with the comparative analysis undertaken by the respondent on internal and international context. He found that the “significantly high hearing thresholds set by the respondent” did not constitute a genuine and determining occupational requirement for the post of Bus Driver and awarded €6,000 in compensation.

In the instant case, the evidence of Mr A as Chief Fire Officer was clear and compelling. Despite the Policy shortfall, Mr A set out the multiple reservations he held in relation to allowing hearing aids on the fire ground. I detected an honest fear that these prostheses if worn in conjunction with the pre-existing ear defenders would jeopardise safety for everyone. He was genuine and unshakeable on that position. He was not aware of a viable comparative analysis on wearing hearing aids as a fire fighter in any jurisdiction and believed that he had sought proper guidance by seeking an inclusion of the topic at national level which may in turn inform change in the Occupational Health Guidelines .The London model referred to by the Union was only at tender stage and US guidelines frowned on hearing aids in a fire setting .He contended that the complainant was expected to be fully deployable in fire management and thus in receipt of a minimum of H3 in hearing .

However , while I accept that the respondent acted to place the complainant on sick leave on 19 June, 2018 as it had not been possible for her hearing to improve with reasonable adjustments at that time , I noted that no obvious consideration had been given to redeployment as a management tool, yet it was clearly marked as an option in the UK draft guidelines presented by the respondent .

I asked Mr A about this and learned that redeployment was not viewed as viable from the Fire Service and it had not worked in the past and would amount to a disproportionate burden. I had some difficulty with this response and I will return to this.

The medical evidence shared by Dr OHD centred squarely on the complainant’s individual capability in hearing. The respondent agreed to allow both mediums of testing, with aids and without and the outcome fell short of the declared standard of H3. Both parties accepted that this was the norm. Dr OHD explained how the C scale had been transmitted to the H scale in April 2019 and this had not yielded a H3 or lower. He considered the complainants private Audiology report dated December 2018 which stated that “no change from the test in previous year “. The Complainant had been judged fit in every other aspect of her medical examination.

I accept that Dr OHD was not requested to permit a re -test with the trial hearing aids.

I noted the Respondent reluctance to undertake a risk assessment of the complainant’s capacity to undertake her role. Given the due deference displayed towards the Safety Health and Welfare at Work Act in the Safety statements, I do not accept that it was impossible to undertake a risk assessment on the job. The respondent countered this by stating that the restricted duties sought amounted to 5 %, and not the 30% muted by the complainant yet this was not objectively measured.

The respondent has relied on section 16 (1) as defence to the claim of discrimination. It was their consistent submission that despite the application of fair procedures and extensive medical evaluation inclusive of consideration of an external audiology report, that the complainant was not capable on reasonable accommodation of performing her function thus adapted.

The Union disagreed with this analysis and contended that section 16(3) had not been complied with. On a careful analysis of the facts, I found significant gaps in communication in this case. I found that the complainant did not give an adequate explanation at hearing of her delay to engage with the respondent post the September 2017 discovery of hearing loss. I did not accept her reasons offered for not attending the 20 June 2018 scheduled meeting and I saw this as a missed opportunity to participate in a consultative forum from an early stage.

The complainant’s evidence was inconsistent at times, particularly in relation to her private earning pattern. However, overall, I found that she was somewhat disengaged in the face of the respondent’s efforts to follow the occupational health policy. The complainant held strong personal views on her capability in hearing, but she did not debate these with the respondent’s medical advisors. Admittedly, she was not furnished with minutes of the 30 July 2018 meeting by the respondent and this was a stark omission.

However, I must consider if the complainant would have achieved a full capability of undertaking her duties on reasonable accommodation on provision of appropriate measures?

In considering the appropriate measures taken, I am satisfied that the respondent engaged a thorough medical evaluation inclusive of Audiology report before the complainant was first placed on sick leave. I am satisfied that the complainant was given an opportunity to frame her response to these findings.

I am satisfied that she was permitted to test with hearing aids and without hearing aids. I cannot establish that the parties engaged in a comparative analysis of live services where hearing aids were permitted prior to this hearing. I note that during April 2019, the complainant began to trial new enhanced hearing aids and while I note that she was seeking a new Audiologist review, she did not formally request to re-test with these enhance aids and she did not raise this at her Occupational Health review.

Given that the complainant had tested in January 2019 with hearing aids, I cannot conclude that she would have been prevented from re-testing with the hearing aids. I appreciate that the complainant was feeling very vulnerable having been out of work for almost 10 months at that point, however, I would have expected her to be clearer in her communication on this important point. The hearing aids were priced at €4,000 and would not have amounted to a disproportionate financial burden had they generated a positive result. It is regrettable that the complainant did not obtain a report from the Trial Aid issuers for the respondent medical advisors.

I cannot accept the handwritten notes from past fire fighters as these authors did not attend as witnesses and I did not have their medical evaluations.

I accept that the respondent had a clear understanding based on Medical reports that the complainants hearing was not compatible at H4 and H5 with her full range of duties in a safety critical job. I accept that they were not bound to create a new job for the complainant, however, I am not satisfied that the respondent took appropriate measures, where needed to enable the complainant to have access to employment in this case.

I accept that the respondent had an awareness that the complainant was trialling new hearing aids which she told the respondent on 25 April 2019 “my hearing has improved immensely “This did not prompt further action by the respondent or the complainant.

Yet, at 30 May 2019 meeting, the Union was asked to clarify what reasonable accommodation was being sought to which they answered “hearing aids “. This should have been revisited by the parties.

I have found that the respondent largely complied with the procedural requirements around reasonable accommodation in their safety critical service. However, in not undertaking a risk assessment on the complainant’s role vis a vis the complainant’s disability, I found an action short of appropriate measures.

The UK guidelines adopted by the Respondent carry an illuminating point in Summary of standards

It is not intended for this document to set standards .It provides the evidence base on hearing to enable decisions to be made for individuals based on the minimum capability for their role, using aids to hearing if this is considered a reasonable adjustment……..It is unlikely that individuals with hearing below the H3 level(with aids if appropriate) would be safe on the fire ground or in the control room .

Based on this summary, there is no universal ban on hearing aids in the Fire service. The respondent acted on a H4 scale with aids, which they believed to be an appropriate measure and one they determined ruled the complainant out of employment. The complainant took issue with the transmission of the C scale to the H scale but did not contest it. While I can fully understand the Respondent detailed apprehension on hearing aids in the fire service, I find that this decision has not been based on empirical research.

I also found the shortfall in appropriate measures by failure to at least consider and discuss the prospect of redeployment as mentioned in the UK guidelines adopted by the respondent. I cannot accept, despite its high level of specialism that the fire service is a separate entity divorced from the larger parent public body of which it is a constituent.

The complainant is looking at an earlier retirement if everything possible is not undertaken to assist her access to employment and the impact of her enforced absence ought to have prompted a greater energy by both parties for options to exhaust appropriate measures for reasonable accommodation.

It may evolve that all efforts at appropriate measures may not yield a productive outcome, however by not exhausting these appropriate measures outlined under section 16(3) I find that the respondent cannot avail of the defence contained in Section 16(1) of the Act.

I find that the respondent has discriminated against the complainant in the failure to provide appropriate measures in accordance with section 16(3) of the Act. I find the claim is well founded.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have found the claim to be well founded and in accordance with my powers in accordance with section 82 of the Act, I make the following orders.

I order the Respondent to arrange for a hearing retest with the enhanced hearing aids inserted within 4 weeks of this decision. If the complainant secures a Pass, she is to return to work immediately and the respondent is to cover the cost of purchase of the hearing aids.

I order the Respondent to insert National Guidelines on hearing aids in the Fire service to permit for such an action.

This is without prejudice to the parties exploring the prospect of redeployment at any stage.

I have reviewed the complainants P60s for 2017 and 2018. I note that she is not currently receiving DSP payments. I order the respondent to pay the complainant €5,000 in compensation for the effects of the discrimination. This amount does not have a tax liability

Dated: 16/04/2020

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Discrimination on grounds of disability and reasonable accommodation