Complainant

Respondent

Parties

Karl  Griffin

Bus Átha Cliath (Dublin Bus)

Representatives

Arthur Cush BL                                  Conor Newman                                   Barry O'Donnell Solicitors

Cliona Boland BL                                    Hugh Hannon                                     CIE Solicitors

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-00039779-001

11/09/2020

This complaint was triggered by workplace relations complaint form which issued on the 11th of September 2020. The Complainant outlines one complaint relating to a discrimination in the workplace on the grounds of disability.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented, and the Complainant made an Affirmation as appropriate. The Complainant’s Doctor also gave evidence.

I was provided with a comprehensive submission dated the 31st of March 2021. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence – such as emails etc., in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was discriminated against on the grounds of his disabilities including sleep apnoea and anxiety. The Complainant asserts that had reasonable accommodation been given to him by his Employer he would have been in a position to return to the workplace.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent had representation at this hearing. The Respondent provided me with a written submissions dated 29th of November 2021. I have additionally heard from 2 witnesses for the Respondent. All evidence was heard following an Affirmation. The Respondent was cross examined by the Complainant representative.

The Respondent rejects that there has been Discrimination. It says it was always willing to accommodate the Complainant though could not acquiesce to the demands being made by the Complainant in this regard.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of two days of hearing. The Complainant commenced his employment with the Respondent bus company in and around 2007. He worked exclusively out of the Harristown Bus depot. In this workplace despite twelve years of service the Complainant was still regarded as a non-senior bus driver and had not been assigned a permanent route. He was one of a large group of drivers known as a “spare driver”. Spare drivers can do any shift in any rotation and are obliged to be flexible, versatile and available in the workplace. I understand that the recession had slowed down the intake of drivers which had slowed down promotions, leaving an unusually large cohort of spare drivers in the workplace.

For my purposes, I understand that there are three relevant shift patterns. There are the very early starts which might involve being in the depot by 5am. There are the very late shifts which might involve returning a bus in the small hours of the morning. Lastly there are the “bogey” shifts which are the shifts which run through the day and have more sociable hours. It is, I suppose, self-evident that the bogey shifts are preferable to the late and early shifts as described. Ordinarily all drivers, and certainly the non-senior Spare drivers (like the Complainant herein), are expected to do all three shift types in the weekly/monthly shift rotation.

The Complainant worked all these patterns as a spare driver from 2007 through to 2011. The Complainant was out for a period of time with a bad back and on his return to the workplace in and around 2013, the Complainant was diagnosed with sleep apnoea. The complainant was very proactive in getting this condition under control. The Complainant had mechanically assisted overnight breathing, exercised regularly and watched his diet. The Complainant explained to his employer, and his employer accepted, that a regular sleep pattern was essential to control this problem. The Employer agreed to put the Complainant on a bogey run which did not start until 10 am. By avoiding the early and late shifts I have described, the Complainant was able to regularize his sleep pattern which in turn brought his sleep apnoea well under control.

I am satisfied on the evidence that the condition complained of, that of sleep Apnoea, is a “disability” within the meaning of the Acts and that the “facilitation” (as it was known in the workplace) is in fact a reasonable accommodation as defined and understood. I know the Respondent sought to distinguish between a recommendation and a direction. The Respondent saw this accommodation as little more than a workplace recommendation that had been allowed to go on too long.

It is accepted that the initial facilitation was recommended by the onsite Doctor/occupational Doctor (Dr.S). There is a question mark over how long such a facilitation was intended to last once the condition of sleep Apnoea was under control, but the undisputed fact is that the facilitation or reasonable accommodation continued for more than five years after 2013. The Complainant was assigned to the 17A route to start at 10am and finish at 7pm. Any weekend assignments also fell within those hours. The nett effect was that the Complainant was working a pattern normally assigned to a senior driver. I note that the assignment suited the Complainant’s particular home life in addition to assisting with keeping his condition under control.

Unfortunately, in 2018 the number 17A bus route was lost to a competitor of the Respondent company and all the drivers assigned to that route both spare and senior were displaced and had to be re-absorbed on the other routes still operating out of Harristown. The Complainant confirmed he did not seek to be employed by the transport company that had taken over the no 17 route. He continued with his employment with the Respondent.

The Complainant, through his Union Representative (AD), canvassed the Complainant’s specific circumstances with new Depot Manager (GK).  GK had arrived in 2018 and had already been raising questions in relation to the number of personalised facilitations which were in operation in the workplace for one reason or another (up to 80 it seems). Text messages between AD and the Complainant were opened to me. The complainant described getting somewhat of a grilling from GK at this time. GK was looking for documentary evidence of the Complainant’s condition which required facilitation. I do not necessarily criticize the Manager for wanting a better understanding of the situation. As he explained, he had to redistribute a great number of staff from the 17A and in a highly unionized workplace where the pecking order between spares and seniors is very important. The Senior staff are proprietorial about their entitlement to the shifts and runs they are entitled to – and this is all negotiated at Union level. I accept that the Complainant had no clarity for a while but was eventually accommodated with a No. 83 route which also ran through the daytime hours.

This no. 83 run was assigned to the Complainant on or about the 17th of February 2019. I accept that there might have been a reluctance on the part of GK at this time. He was struggling to place everybody, and the Complainant was by no means the only person in the depot in need of a personalised facilitation. However, the evidence is that he did come through for the Complainant in the end. I accept that this was done in good faith at the time. Being placed on this run tends to show that GK had some understanding of the need to accommodate the Complainant. It was suggested to me that GK had to balance the special arrangement being sought by the Complainant against the questions potentially raised by senior staff who believe such special accommodation is earned by length of service.  I accept that these were problems genuinely faced by the Respondent Manager.

Unfortunately, the said No. 83 route had to be widely advertised to all staff (including senior staff) two months later in April of 2019. This was a Union- secured obligation and out of GK’s control. Needless to say, all the bogey runs were snapped up by senior drivers leaving the Complainant once again, in state of uncertainty. In his evidence, the Complainant said he did not apply for the run as there was no way he could get it given his lack of seniority. I deduce from that, that the Complainant was well aware of how the workplace operated in terms of advertising and how competitive and sought after the bogey (daytime) runs were. He must also be taken to have been aware of how his relative lack of seniority marked him out as an employee not necessarily entitled to do bogey runs exclusively.

I do not doubt that the Complainant believed that any dramatic change to his shift pattern which might limit or disrupt his overnight sleep pattern would have a negative effect on his sleep apnoea resulting in exhaustion and incapacity. For him it was a safety issue and he did not want to cause an accident while driving. In the course of the February 2019 re-shuffle, he had obtained a medical letter from his HSE Consultant Respiratory Physician describing the condition as “severe” and indicating that anything other than “well scheduled sleep” contributes to “fatigue”.  The Complainant had hoped that the message delivered in this letter would be sufficient to persuade management that he was not a good candidate for the early and late shifts. At the same time though, it is noted that Dr S had deemed the Complainant fit for the duties of his grade a year earlier (in a memo to management dated February 2018) and hadn’t referenced the sleep apnoea which she had always understood (as she asserted in her own evidence) to be mild and under control.

The Complainant met with GK in April of 2019. As it happens, the Complainant was about to take a week of pre-scheduled leave. The versions given by the Complainant and GK of this meeting are irreconcilable. The Complainant says that GK was of the view that the Complainant needed to start making himself available for the varied shifts in line with his co-workers.  The Complainant said this would be dramatically different to what he was used to in previous years. The Complainant said repeatedly in evidence that it was his belief that there were plenty of unassigned bogey shifts operating out of Harristown every day. The Complainant says that his reaction was one of pure panic. His heart was racing, and he was anxious and upset. His week of annual leave, he said, was ruined in the aftermath of this meeting.  GK gives a very different account of what he intended to communicate in the April meeting with the Complainant. GK gave evidence that he told the Complainant that he would no longer be able to assign a permanent bogey run to the Complainant but would endeavour to ensure on an ad hoc basis that his hours would be bogey-run or middle start hours, albeit on different bus routes. In his evidence to the WRC, GK said that the Complainant would have to get very short notice of where and when he was required as is the ad hoc nature of this arrangement. But GK seemed to think that the Complainant would certainly get 48 hours’ notice. I understand that in this context the bogey runs might start from about 8 in the morning and until 8 at night depending on when and where. This put the Complainant in line for starting up to two hours earlier than he was used to (heretofore he had been on a 10am start).

There is a clear conflict of evidence as between the Complainant and GK about the content of this meeting. The Complainant appears to have believed that he would be back on Early and Lates such that his sleep pattern would be disrupted to the point of it being dangerous for him to drive. GK is clear that he was only suggesting a slight modification to the schedule already in place. Neither party sought further clarification from the other as to exactly how the changes might work.

Rather than return to the workplace after the week of pre-scheduled Holiday, the Complainant went out on work related stress this was at the end of his holiday (mid-April 2019). The Complainant stayed out of the workplace on certified sick leave. He states that before long, he was on medication as had become anxious about the workplace situation. He also confirmed that he received the full workplace illness benefit available to him. I understand that there was no further communication between the Complainant and his line Manager GK after whatever conversation they had had in early April 2019. We can never know how the suggested arrangement might have worked as neither party talked to the other. Once the Complainant went out on sick leave GK thought it appropriate that the Complainant liaise with the Medical Officer. I accept that this is the correct procedure.

The next interaction with the workplace was with Dr. S in the workplace as part of the Employer review of an employee unable to be in the workplace because of ill-health. This was on the 17th of June 2019. It is noted that the Complainant confirmed that Dr S had always been very supportive of the Complainant and had monitored his apnoea readings for years.

The Complainant described an extraordinary scene between himself and Dr.S. He said that she was shouting at him, that she stood up and leaned over him and accused him of it all being in his head, and there being no need for the facilitation. He says that she said that she resented being bullied into having to give him an accommodation. The Complainant says in the context of this meeting, that he was shocked by what happened and what was said. Dr. S was somebody who had heretofore always supported him and had always understood the nexus between avoiding an unstructured sleep pattern so as to ensure safety as a priority.

Dr S in her evidence stated it was very hard and upsetting to hear herself described in this way. Her recollection of that meeting was of a discussion primarily about his now-dominant anxiety and mental health issues. She indicated that there had been previous bouts of anxiety. The Dr believed the sleep apnoea was well under control. Again for the purpose of clarity I accept that anxiety can be a disability fro th4 purpose of the Equality Acts.

The Complainant was very upset after this interaction though he did return to Dr S a number of times as she was the treating occupational therapist. The Complainant says there was never a repeat of the temper he says he witnessed in the June meeting. They met (himself and DR. S) in August and October of 2019. I cannot make a definitive call on what happened at the Dr/Patient meeting of the 17th of June 2019. It seems surprising to me that Dr. S who gave oralevidence, would be so lacking in sensitivity and professionalism. Two things I must acknowledge in the aftermath of this meeting are the fact that no complaint was ever made by the Complainant about Dr. S and the second is that the Complainant continued to submit himself to be reviewed by Dr. S.

In January 2020 (after nine months out on illness benefit) Dr S thought the Complainant had improved, and suggested he should try and interact with the workplace even if only for a coffee with some colleagues. The Complainant described returning to the workplace as very difficult and creating a state of panic in him. His heart was racing. Her was in a cold sweat. He said that there was no tolerance for it. Driving is a safety critical role and the Complainant was now repulsed by the thought of it. He had indicated he was not able to put on a uniform. He described all this to Dr. S. Ultimately, it was for these reasons that Dr S formed the view that the Complainant could never safely return to this workplace. She had warned him of this potential outcome in March of 2020. In the March 2020 review between them, the spectre of having to retire the Complainant on fitness to work grounds was raised with him. On foot of this there  was a professional communication by Dr. S  with the Complainant’s own Doctor (which was sanctioned by the Complainant). The Complainant’s own GP (Dr. O) flagged at the time that the Complainant would be unlikely to return to his current occupation of bus driver. It is an unavoidable fact that at this moment in time the two Doctors seemed satisfied that he would not be returning to this workplace as a Bus Driver. There had been no progress in a year.

The Complainant blames the Respondent for this outcome. He says he should have been allowed to return incrementally to the workplace. This, to my mind, somewhat contradicts the evidence he gave concerning his adverse reaction to returning to the workplace when he did attend at Dr. S request.

The Complainant stayed out of work with anxiety and depression triggered, he says, by the workplace issues. As previously noted, he never again approached his line Manager or any Manager about returning to the workplace. He opted instead to let the medical experts to take full control of his destiny. It was in these circumstances that he was eventually notified that he was going to be retired on the grounds of ill health with effect from August 2020. This was notified to him on the 24th of June 2020, after a final medical appointment with the Chief Medical Officer on the 19th of June 2020. At the June 2020 medical appointment, the Complainant had been out of the workplace for 14 months with no sign of improvement for his ongoing anxiety.  An appeal did not change this outcome.

GK had advised in evidence that the depot can only sustain so many drivers out sick at a given time. There is a route-duty to driver ratio that needs to be maintained to ensure all buses go out every day. Too many people out on long term sick leave leaves the depot under resourced. The Depot cannot take on and train up new staff while its current staff are away from the workplace on sick leave. The situation becomes critical as sick leave goes on for a protracted period. Eventually the only option is to retire a driver on the grounds of ill-health.

I heard a lot of evidence concerning the flexibility within the workplace for allowing drivers suffering with sleep apnoea to drive. This was not an uncommon condition and there appears to be a number of drivers at any given time suffering with this disability. I also heard evidence concerning drivers with anxiety and even those on medication being allowed to drive (where medically safe to do so). This evidence offered by Dr.S certainly tends to suggest that the Complainant might have explored more options in the fourteen month period while he was out on sick leave.  Unfortunately, there is no evidence to suggest that any such conversation took place before the Complainant went out in the dramatic and final way that he did. Nor, as I say, did he seek to engage with the workplace over and above his dealings with Dr. S.

As previously stated, there is no doubt that the Complainant had a sleeping disorder that amounts to a disability. There is also no doubt that the said disability was accommodated in the workplace for a considerable period.  A number of issues arose in the workplace (from GK’s point of view) which required greater flexibility on the Complainant’s part and which he was loath to commit to in circumstances where he was concerned that the danger of sleep-deprived driving was not being taken seriously by his Employer. The Complainant wanted an ongoing reasonable accommodation in the form of the bogey runs while his Employer sought to look for more flexibility in the start and finish times. The question is whether the changes being suggested were an abandonment of the reasonable accommodation which had heretofore been provided?

I think it is common case between the parties that the sleep apnoea was well under control and had been for years.  I would accept that the accommodation, which was in place in 2019, had been introduced at a time when the worst-case scenario was the biggest consideration. The Complainant had just been diagnosed, and the solution was to place him on the most conducive and stress-free shifts. I do not think it reasonable to assume that the Employer was obliged to keep that reasonable accommodation in place forever. To suggest this would be to suggest that there would never be any allowance for an amelioration or deterioration of the disability in question. It is self-evident, I would say, that an Employer must be allowed (within reason) to adjust a reasonable accommodation in accordance with any changes in a physical or mental condition. These are ongoing conditions subject to change.  In particular where a disability appears, as in this instance, to be less serious than originally diagnosed then it is reasonable for the Employer to open up the conversation about changing the reasonable accommodation. In this instance the Employer was only asking for flexibility for a start and finish time by two hours either way. To my mind this was a wholly reasonable ask.

The Complainant must have known that his daytime shift pattern was unique to him, and that this was ruffling feathers in this workplace. As his manager came under pressure with the loss of runs etc., it was not unreasonable for his manager to seek more flexibility from the Complainant. The Complainant’s blanket refusal was not a reasonable response. The Complainant ignored the fact that GK had previously found a role for him which suited his requirements (the 83 route). The Complainant had no reason to assume that GK was now determined to fully ignore the Complainant’s health concerns which everyone agrees could foreseeably give rise to a dangerous outcome to passengers and road users alike.

I am not persuaded that the Complainant has made out a Prima Facie case of discrimination. At no time was the Complainant asked to start or finish a shift which would not accommodate his sleep Apnoea. Exploring the limits of what might be considered reasonable does not constitute discrimination.

Thereafter the Complainant’s employment came to be terminated on the grounds of his ill-health. This was a decision made at the end of a long process of medical review and was based on two medical opinions which agreed that the Complainant was no longer fit to drive buses. There was no discrimination in this finding.

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

CA-00039779-001 -  The Complainant herein was not discriminated against.