Complainant

Respondent

Parties

William  Morris

Iarnrod Eireann Irish Rail

Representatives

Stephen Collins Irish Human Rights and Equality Commission

 Tom Mallon BL

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-00034792-001

23/02/2020

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

CA-00038912-001

27/07/2020

The Complainant is a man who applied for two roles, locomotive driver, and Revenue Protection Officer (RPO) with the Respondent, a railway organisation. The Complainant lodged two complaints with the WRC under the Employment Equality Act 1998, the first of which was received by the WRC on 23 February 2020, the second of which was received by the WRC on 27 July 2020.

The matter was heard by way of remote hearing on 30 March 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. This hearing was adjourned without cases being presented.  An in-person hearing took place on 16 November 2021, this hearing was adjourned without cases being presented. An in-person hearing took place on 18 May 2022, at which cases were presented and evidence given.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

 The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

 Full cross examination of Witnesses was allowed.

The Complainant provided a detailed written submission.

By way of background, the Complainant submits that he was diagnosed with depression and generalised anxiety disorder in 2007.  He did not have any severe symptoms such as anxiety attacks.  He attended his Consultant Psychiatrist in August 2007 where the Consultant noted a diagnosis of generalised anxiety and recommended that the Complainant remain on his medication (Sertraline 200 mgs) until at least an upcoming surgery.  The Consultant’s report of 2017 clearly states the Complainant “objectively presents as relaxed and not tense during the interview”.

Prior to his application to the Respondent for the position of locomotive driver, the Complainant was working as a self-employed taxi driver under contract from Bus Eireann to transport special needs children to and from school.  In this role the Complainant had to frequently take action, on an urgent basis, to with matters that arose, and he experienced no issues in his performance of his role in the 15 years he carried out this task.

In 2017, the Complainant was discharged from his consultant’s clinic and into the care of his GP.

In December 2019, the Complainant applied for the position of locomotive driver with the Respondent. He successfully completed all tests for the position, including the driver safety test. In the overall marking scheme for the driver assessment, he achieved a grade ‘B’ in ability to react quickly and safely to changing situations and high scores on the safe concentration and attention test. 

Having successfully passed the tests the Complainant was invited for an interview with the Respondent to take place on 14 February 2020.  He was also required to undergo a medical examination with the Respondent’s medical advisors.  During this assessment on 31 January 2020 the Complainant disclosed to the nurse assessing him that he was on medication for anxiety.

For the second stage of this medical examination, the Complainant attended with Dr Loftus, a specialist in occupational medicine, in the CMO’s office on the same date. The Complainant informed Dr Loftus that he had suffered anxiety in the past.  He passed all other tests at this assessment.  The Complainant submits that he was informed by Dr Loftus that the Respondent did not “hire people with your type of history”, a clear reference to the Complainant’s anxiety, as well as a statement of the absolute nature of the Respondent’s policy of the non-hiring of persons with anxiety in safety critical roles irrespective of the manifestation of the condition.  The Complainant stated that this was unfair and Dr Loftus responded that “we [the Respondent] make our own rules.” There was no discussion of the type of medication the Complainant was prescribed or the side effects of the medication or any of the symptoms of anxiety.  The Complainant asked if his medication was the issue and stated he could look to have the medication reduced. He was told it was his condition which was the issue and not his medication. The Complainant provided consent for medical records relating to his anxiety and surgical operations to be opened to Dr Loftus. The Complainant was clear that the decision regarding his unfitness for the position of locomotive driver had been made by Dr Loftus in this meeting which was of 10 minutes duration.

A copy of the Complainant’s medical notes was provided by the Complainant to Dr Loftus on 5 February 2020.

The Complainant submits that no assessment was caried out by Dr Loftus regarding his anxiety and or his medical documentation provided. On 6 February a nurse in the CMO’s office informed the Complainant by telephone that he had not passed the medical.   The Complainant also asked whether this would apply to the Revenue Protection Officer role he had applied for, and the nurse stated that his failing of the medical would equally apply to his application for that position.  His non-passing of the medical was noted in a memo dated 20 February 2020.

As a result of not passing the pre-employment medical the Complainant was informed by the Respondent on 7 February 2020, that he would not be required to attend the interview for the position of locomotive driver as “the medical department have not declared [the Complainant] fit for recruitment.”

The Complainant sought a reason for being deemed medically unfit for the position of locomotive driver and by letter dated 11 February 2020, he was informed by Dr Whelan, CMO, who had not assessed the Complainant, that it was due to “the tendency to generalised anxiety. With such a condition you would not be considered suitable for safety critical roles…This would include Road Passenger driving role.”

The Complainant then contacted his GP who provided a letter dated 13 February 2020 which stated that his anxiety was quite stable for many years while taking medication.  The Complainant submits that there is no evidence that this GP’s report was considered by the Respondent.  In response to the Complainant, the Respondent stated by email of 18 February 2020, “it is the nature of the condition which is the important factor in assessment of fitness for Locomotive Driving. Tolerance of the significant psychological pressures of public safety critical work and shift work is a major determinant of fitness for such a position”.

The Complainant submits that there is no evidence of a risk assessment or an assessment of the psychological pressures of safety critical work being undertaken by the Respondent in respect of the Complainant.  This, according to the Complainant, suggests that the Respondent has imposed an absolute bar on the employment of persons with anxiety as train drivers. There is no evidence the Respondent assessed the Complainant’s tolerance of significant psychological pressure; rather, the Respondent assumed he had no such tolerance.  There was no assessment of how his medication or condition affected his ability to undertake the role of locomotive driver.

In addition to applying for the position of locomotive driver, the Complainant applied for the position of Revenue Protection Officer (RPO).  He completed an on-line test and was subsequently called for interview on 16 January 2020, which went well.  The Respondent advised the Complainant that they would be in touch and that he would be sent for a medical assessment for this position if he was successful.

However, the Complainant then attended the Respondent’s medical assessment for the position of locomotive driver (31 January 2020) as a result of which he was deemed unfit for the role due to his generalised anxiety disorder, as per the communication of 7 February 2020. The Complainant disputed this, stated he was not unfit and requested to be reviewed and stated to Dr Loftus that the treatment was “wrong”. Having taken issue with his being deemed unfit due to his medical condition in respect of the locomotive driver position, he was informed that he had not been successful for the RPO role either. He was informed of this at lunchtime on 7 February 2020, a few hours after he had been informed that due to his failing the medical, he would not be required to attend the interview for the locomotive driver position.

The Complainant believes that the Respondent relied on his past medical condition as revealed in his application for the position of locomotive driver in its decision regarding the RPO position, rather than his performance or competence to work in this role. This, according to the Complainant, is reflected in his call with the CMO office nurse on 6 February 2020.

Alternatively, the Complainant believes that it was an act of victimisation on the part of the Respondent. Whilst the Respondent contends that there were better candidates who performed well at interview, no evidence has been produced. In addition, the Complainant sought feedback by email dated 10 February 2020 and none was provided.

The Complainant submits that the non-appointment of the Complainant to the position of RPO, and the Respondent’s failure to send him forward for medical assessment and/or any further interview, amounts to unjustified discrimination on the ground of disability and/or victimisation, as prohibited by the Acts.

The Complainant put forward several responses to the Respondent’s submissions.  The Complainant submits that in the submissions of the Respondent it is stated that the CMO found that the “powerful medication being taken by the Claimant might compromise his alertness and powers of concentration such as to make him unsuitable an unsuitable candidate for the role.”  The Complainant submits that there is no evidence of this being considered by the Respondent and indeed, it is clearly the case from the correspondence received by the Complainant that it was the nature of his condition, i.e., generalised anxiety, and not his medication which deemed him unfit for the role of locomotive driver.  In addition, this rationale is generalised and is not supported by any proof of the side effects, if any, of the medication taken by the Complainant. There was no discussion with the Complainant during his assessment by Dr Loftus of any side effects, etc, of the medication he was prescribed, or any issues with his concentration. There does not appear to have been any assessment of same.

The Complainant submits that the absolute bar on hiring candidates with anxiety by the Respondent and the way such candidates are deemed unfit for safety critical role is evident from the foregoing. The Respondent’s failure to properly or adequately assess the Complainant having regard to his condition or the updated information, their failure to be in possession of all the material facts, their failure to consider a risk assessment or undertake an adequate assessment of the disability of the Complainant and any impairments attached thereto, together with their failure to provide, or consider, any form of reasonable accommodation, means the Respondent discriminated against the Complainant on grounds of his disability.

The Complainant submits that the medical requirements for the position of locomotive drivers as set out by the Iarnrod Eireann Medical Department, provided by the Respondent, makes no reference to the Employment Equality Acts or to reasonable accommodation. Whilst it stipulates that “Drivers must not be suffering from any medical conditions or be taking any medication, drugs or other substances which are likely to cause….a reduction in attention or concentration”, this was not the reason provided by the Respondent for deeming the Complainant unfit for the position.  The Respondent had no proof of this in the medical assessments of the Complainant, and nor is there any evidence that his attention, concentration, etc were assessed by Dr Loftus.

The Complainant submits that the medical fitness document for train drivers (2010) makes no reference to reasonable accommodation.  In relation to anxiety, it states as follows:

“The condition itself and its treatment with tranquillisers may constitute a danger due to deterioration in reaction time and diminished vigilance.

Relapsing or chronic cases may be permanently unfit for duties as part of group A and B.

The most minor cases without medication and those with medication not causing deterioration in reaction time or diminished vigilance may continue their duties. In support of this a consultant psychiatrist opinion should be obtained…”

The Complainant submits that the Respondent failed to consider a consultant psychiatrist’s opinion and rather determined that the Complainant was unsuitable for the position of locomotive driver based on the nature of the condition.  Indeed, the Respondent did not consider the Complainant’s own psychiatric report.

The Complainant agrees that the role of locomotive driver is a safety critical role.  This does not, however, absolve the Respondent from its obligation under the Employment Equality Acts 1998-2018. In addition, it is a role which is not high safety risk as per the Respondent’s own medical criteria document.

The Complainant submits that there does not seem to be any issue taken by the Respondent that the Complainant has a disability for the purposes of s. 2 of the Acts.

The Complainant submits that the medical officer within the Respondent was absolute in his approach to generalised anxiety disorder; any applicant who has this condition would not pass the medical in safety critical roles. The difficulty with this approach, from an equality perspective, is that it assumes that all persons with generalised anxiety disorder are the same in terms of manifestation of same and are incapable of performing safety critical roles.  Further, the decision was made regarding the Complainant being unfit for the locomotive driver role, in the absence of any opportunity on his part to place countervailing medical evidence before the company doctor or for any adequate assessment of his condition, its symptoms or medication.  Even when such medical evidence was put before the company doctor, at the instigation of the Complainant, it was given inadequate consideration. The company doctor did not, for example, consider that the Complainant’s condition had been stable and/or that his GP had recommended the tapering of his medication in the short term.  In addition, there was no consideration of a psychiatrist’s opinion being obtained, as per the Respondent’s policy. This, according to the Complainant, is consistent with there being a blanket policy against hiring applicants with generalised anxiety disorder, automatically deeming them unfit for safety critical roles irrespective of the extent of the condition and/or their medication and in the absence of medical opinion.

The Complainant contends that it should have been possible for the Respondent to have procured a risk assessment to test whether the assumption made in respect of the Complainant and his disability was correct, i.e., that he could not undertake the role, the Complainant refers to ADJ-00000628, which has in his view has a clear and direct relevance to his case.

On the basis of the foregoing and on the admission of the Respondent that the disability of the Complainant caused him to be excluded and deemed unfit for the locomotive driver position, or interview, the Complainant submits that discriminatory treatment on the grounds of his disability in relation to access to employment can be inferred as per s. 85A of the Employment Equality Act, 1998. A person without a disability would not have been treated in the same way as the Complainant and would have passed the pre-medical and attended at interview for the position.

Regarding the matter of reasonable accommodation, the Complainant submits that the Respondent failed in its obligation to consider and/or provide reasonable accommodation to the Complainant which could have allowed the Complainant to be deemed fit for the position of locomotive train driver. When additional medical evidence was provided by the Complainant from his GP, there is no evidence it was considered as per the email from the CMO of 18 February 2020 wherein he stated, “[i]t is the nature of the condition that is the important factor in assessment of fitness for Locomotive Driving”.  The Complainant cites the Nano Nagle case, [2019] IESC 63, in support of its contention that the Respondent in failing to consider any form of reasonable accommodation has breached the fundamental requirement for fair procedures in a reasonable accommodation process.  The Complainant submits that a determinative view was taken that he was incapable of carrying out the role of locomotive driver on the basis of his condition, meaning he could not carry out the safety critical aspect of the role or cope with the pressure attached to the role. Both assumptions were made in the absence of any specialist medical opinion and in the absence of the Complainant having any opportunity to have input into, or influence, over this decision.  The absolute nature of the decision of the company doctor, and the absence of any consideration of reasonable accommodation, means the company doctor’s opinion breaches s. 16 of the Acts in the area of proportionality; all persons with generalised anxiety disorder are covered by the same decision, and the individualised nature of reasonable accommodation considerations is ignored and/or disregarded by the company doctor. The Complainant refers to the CJEU in Ring (Jette Ring (c-335/11), which it says focused on the need for adequate enquiries about reasonable accommodation to be made by the employer.    The Respondent’s position, that its Occupational Doctor, was in the best position to determine the medical fitness of the Complainant is, according to the Complainant, misguided and in breach of its obligation to consider reasonable accommodation and be in possession of all material facts, prior to making a decision adverse to the Complainant.

The Complainant submits that the Respondent’s reason for deeming the Complainant unfit has changed entirely from what he was informed both orally and in writing by the Respondent in January/February 2020 to what is contained within the written submissions to the WRC. This, according to the Complainant, is highly significant, as the Respondent now attempts to justify what would otherwise be discriminatory treatment on the basis of the terms of its medical policy in the context of a safety critical role.  The Respondent now states that he was deemed unfit because of the apparent side effects of the Complainant’s medication, and not because of his condition. It is submitted that this change in the stated position of the Respondent demonstrates at best an absence of transparency in the decision. The Complainant also submits that discrimination on the grounds of disability can be inferred from this also; such a lack of transparency can give rise to an inference of discrimination.

The Complainant submits (referring to the High Court in Cunningham v Irish Prison Service, [2020] IEHC 282) that the Respondent’s approach in this case was a blanket approach to his condition and unfitness to undertake the role.  There was no attempt to consider the operational needs of the role and whether the complainant’s condition, or his medication, actually affected his ability to undertake the duties and functions of the position.

The Complainant submits that the blanket denial of access to a locomotive driver position based on the Complainant’s condition and/or medication, is disproportionate to the aim of ensuring that drivers are fit for the safety critical aspects of the role.  The Complainant submits that there was no evidence that his medication caused any issues with concentration as the Respondent asserts. There was no form of reasonable accommodation considered by the Respondent as required.

The Complainant submits that his non-appointment to the RPO role constitutes direct discrimination of the grounds of disability by reason of the comment made by the CMO nurse and his being notified the next day that he was not successful at interview, shortly after he had been informed his interview for the locomotive driver role would not proceed due to his failure to pass the medical assessment.  In circumstances where the Respondent failed to provide feedback, and there is no transparency surrounding the Complainant’s lack of success at interview.  Whilst the Respondent refers to others being better candidates, no evidence is provided.  This absence of transparency can give rise to an inference of discrimination.

In the alternative, the Complainant submits that as he had raised a protected act in his meeting with Dr Loftus on 31 January 2020 by contesting that his condition meant he was not fit to be employed as a locomotive driver.  This constitutes a protected act for the purposes of s. 74(2) of the Acts.  He was subjected to non-appointment to his detriment as a result.

Dr Whitty gave evidence at the hearing.  Dr Whitty explained that he is a Consultant Psychiatrist. Dr Whitty stated that the Complainant had been suffering from Generalised Anxiety Disorder from 2007.  Dr Whitty explained that General Anxiety Disorder can have physical symptoms and can create tension and nervousness. 

Dr Whitty stated that he had met the Complainant in his office having reviewed his medical file and history. He had then prepared a report on 3 December 2021.  Dr Whitty stated that the Complainant had presented very well, he had recovered well from his episodes of anxiety and that he was largely or fully asymptomatic but was still taking the maximum strength medication for prophylactic purposes. The prognosis was good, encouraging, particularly as the Complainant had had no treatment in four years. He was functioning at a good level. There was no evidence of a psychotic disorder.  When asked if the Complainant was suffering from a severe and enduring condition, Dr Whitty stated that although this is not a diagnostic term, he could not categorise the Complainant’s condition as severe and enduring. Dr Whitty stated that a prescription for medication could be given for preventative reasons and this had been done in this case to prevent a reoccurrence.

In cross examination, Dr Whitty agreed that he could not say whether the Complainant suffered a disability, he could only say that when he examined him, he was not suffering from illness. When further questioned on the matter and asked whether the Complainant suffered from a disability “currently”, Dr Whitty replied that he did not think so. Dr Whitty stated that when he had seen the Complainant in 2016, he did have a disability and presented some symptoms. When asked when between 2016 and 2021 did he think his disability was no longer present, Dr Whitty stated that he could not give a definite time on that.  Dr Whitty agreed that restrictions on who could drive a train would be justified in certain circumstances.  Dr Whitty also agreed that an overwhelming stressor could bring on an anxiety attack. When asked whether the Complainant was at greater risk than others (of having an anxiety attack) Dr Whitty stated he thought the chances of the Complainant having an anxiety attack were small. Dr Whitty agreed that he was not an expert in the field of safety regulations.

The Complainant gave oral evidence at the hearing. He outlined the background and origins of his medical condition. He explained that he was tapering down his medication and hoped to be off medication in six months. The Complainant explained that he had been working as a taxi driver, driving special needs children.  He said the job could be stressful and he had always to be alert. He stated that his medication had no negative effect on how he did this work.  When asked when he had last felt anxiety, he stated that he could not remember but it had been two or three years ago. He has a great outlook and is involved in a “stretch programme” which trains him in how to deal with stressors and stressful situations. 

The Complainant stated that he had applied for the roles of locomotive driver and RPO in January 2019, as either would give more stability than the taxi driving.  He had completed and passed a number of tests and was called for a medical.  He attended at the end of January 2020.  He told the nurse he was on medication Sertraline and he says that she replied that that was ok once he had a prescription, the nurse was taking notes.  He thought he was with the nurse for between 30 and 40 minutes.

After this a Dr Loftus came in and carried out a medical examination. When it came to the point where Dr Loftus was copying to his own notes from the nurse’s notes, the Complainant says that Dr Loftus said, we don’t employ people on that medication. The Complainant replied that that was unfair upon which Dr Loftus suggested that he submit a report on the medication.  The Complainant was distraught at this turn of events and believed his chances of getting the role were gone.

Following the medical, the Complainant stated that he sent in the report but got no reply.  He rang the nurse whom he says told him that he would not get the job because of the report.  He asked her if he could appeal the decision and she said he could send in a letter.  When the nurse informed him that he had not got through, this was the first time he had found out. The Complainant stated that he said to the nurse that he had applied for another role.  Her response was that, once he had failed one medical he would not get through. Subsequently the Complainant wrote to the Respondent asking for more detail on why he had not been selected.  He received a response stating it was due to his anxiety disorder.

Regarding the RPO role the Complainant stated that he had applied for this role at the same time as he had applied for the locomotive driver role. He did an interview for the RPO role, which he thought had gone well.  The Complainant stated that hit is his belief that the reason he did not get the RPO role is because he failed the medical for the locomotive driver role.  When asked why he thought that the Complainant replied, “due to my mental health.”  The Complainant stated that he was “gutted” because of what had happened and believes it was not right.

In cross examination the Complainant agreed that the safety critical aspect of the role of locomotive driver is greater than that which applies to his current role.  The Complainant stated that more information (on his medical condition) could have been sought from, for example, Dr Whitty.

Under questioning the Complainant re-iterated that Dr Loftus had said, we don’t hire people on medication and that he did say, we make our own rules.  He also stated that the nurse had said to him, that once you fail a medical, you won’t be sent for another.

In conclusion the complainant submits that

(a) The Respondent discriminated against the Complainant on grounds of his disability in relation to his non-appointment to the position of locomotive driver.  The Respondent deemed him unfit for appointment to this position by reason of his condition;

(b) The Respondent failed to consider reasonable accommodation of the Complainant;

(c) The Respondent cannot rely on the genuine occupational defence; the Respondent has altered the reason for his being unfit;

(d) The Respondent discriminated on the grounds of the Complainant’s disability in relation to access to employment for both the RPO and locomotive driver roles;

(e) In the alternative, the Respondent victimised the Complainant by his non-appointment to the position of RPO, and/or by not passing him to interview;

(f) The Complainant suffered distress as a result of his treatment and was greatly disappointed by his non-appointment to the position of locomotive driver and/or being invited to attend an interview for this position.  The absolute nature of his being deemed unfit due to his condition, his treatment by Dr Loftus in the assessment, the failure to consider his condition in the context of the role, or his medication and the failure to address his concerns, are all factors which mean that compensation for the effects of discrimination at the upper level of the maximum compensation of €13,000 under s. 83 of the Acts should be awarded;

(g) Equally the discrimination/victimisation arising from his discriminatory treatment in respect of the RPO position means compensation at the upper level of €13,000 should be awarded;

(h) The Complainant also seeks an order that the Respondent take a specific course of action as per s. 83 of the Acts; in this case that it ceases its absolute blanket deeming of persons with anxiety/generalised anxiety disorder to be unfit for safety critical roles and that it complies with its obligations under the Acts.

In closing comments, it was put forward that for two years prior to being assessed for the job, the Complainant was on an upward curve, only taking medication as a prophylactic measure.  He had been working in difficult scenarios, which he took in his stride, underlining that his mental health problems were not severe and enduring. The Complainant submits that a prima facie case has been established and the reason that he was unacceptable to the Respondent as a driver was because he had General Anxiety Disorder.  The Complainant submits that the defence set out by the Respondent, s. 112 of the Railway Safety Act, 2005, cannot be used to justify blanket decisions.

The Respondent provided a detailed written submission.

The Respondent denies it discriminated against or victimised the Complainant in declining his application for the position of RPO.  The Respondent submits that it did not discriminate against the Complainant contrary to the Acts, in determining that he was unfit to work as a locomotive driver.

Regarding the RPO role the Respondent submits that the Complainant was interviewed for the RPO role on 16 January 2020 (there were 89 applications for the post). The interview panel on the day decided that he should not be selected and therefore should not be called for medical assessment. The members of the interview panel were not aware of his medical status and did not take any account of same. An email dated 16 January was sent to the only candidate from that day’s interviews who was called for a medical assessment.

The Respondent submits that the decision in relation to the Complainant’s application for the revenue protection role was entirely unrelated to his medical status or the process or outcome in relation to the train driver role.  The decision did not amount to either discrimination or victimisation.

In regard to the locomotive driver role, the Respondent submits that locomotive drivers are required by statute to be assessed for medical fitness to drive and cannot drive if they are assessed as unfit. The Transport (Miscellaneous Provisions) Act 1971, section 29 was the operative provision in this regard until its repeal by the Railway Safety Act 2005.

Section 29 of the 1971 Act was repealed by the Railway Safety Act 2005, section 5 and was, in effect, replaced by section 112 of the 2005 Act which provides for the medical assessment of “safety critical workers”, defined by section 95 of the same Act as including train drivers.

The Respondent submits that section 17 of the Employment Equality Act 1998 provides that nothing in the Act shall render unlawful decisions made under certain other statutes. Section 17, as far a s relevant, provides as follows:

17. – (1) …

(2) …

(3) In relation to discrimination on the age ground or disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision made by or under ---

(a)…

(b)…

(c) section 29 of the Transport (Miscellaneous Provisions) Act 1971,

It is submitted by the Complainant that the CMO’s decision concerning the Complainant was taken under section 112 of the Railway Safety Act 2005; that section 112 replaced section 29 of the Transport (Miscellaneous Provisions) Act 1971; that the reference in section 17 of the Employment Equality Act to section 29 should therefore be read as a reference to section 112 (by virtue of section 26 of the Interpretation Act 2005) and therefore the decision taken under section 112 is not rendered unlawful by any provision of the 1998 Act.

In respect of the Locomotive driver role the Respondent submits that Dr Loftus, a specialist in occupational medicine in the Occupational Health Unit of CIE, assessed the Complainant on 31 January 2020.  The assessment was scheduled for 40 minutes and takes at least that length of time. Dr Loftus did not make a decision on the Complainant’s fitness but indicated that such a decision should be held until the Complainant’s medical records were furnished.

The Respondent’s CMO, Dr Whelan, made the decision on the Complainant’s fitness on 6 February 2020.  Dr Whelan had the benefit of the Complainant’s medical reports including the report of Dr Peter Whitty, Consultant Psychiatrist, dated 31 August 2017.  Dr Whitty’s report confirmed the Complainant’s diagnosis as Generalised Anxiety Disorder and the treatment as Sertraline 200mgs daily.  In making his decision the CMO had regard to the fact that the Complainant had an enduring mental health condition, Generalised Anxiety Disorder, requiring maximum doses of Sertraline to control it.  Given the nature of the condition and medication and given the demands of the role of locomotive driver and the consequential likelihood of impairment, the CMO was of the opinion that the Complainant was not mentally fit for the role as locomotive driver.

The Respondent denies this was a “blanket decision”, rather it was related to the Complainant’s circumstances. The Complainant denies the decision was made without specialist medical opinion, as the CMO is a Specialist Occupational Physician and he took into account the specialist medical opinion of the Complainant’s Consultant Psychiatrist, recording his diagnosis and treatment.

The CMO’s opinion was conveyed to the Respondent by memo dated 6 February 2020.  The Complainant telephoned on that day and was informed of the contents of the memo by the CMO’s secretary.  The Compliant queried the decision and Dr Whelan replied to him by letter dated 11 February 2020 in the following terms:

“The reason you are not considered suitable for Locomotive Driving role was due to the tendency to generalised anxiety.  With such a condition you would not be considered suitable for safety critical roles in the companies of CIE.  This would include Road Passenger driving role.”

The Complainant wrote to Dr Whelan by email dated 13 February 2020, enclosing a letter from his GP which proposed that he “could taper [his medication] and stop and see how things go”.  Dr Whelan replied by email dated 18 February 2020 in the following terms:

“It is the nature of the condition that is the important factor is assessment of fitness for Locomotive Driving.  Tolerance of the significant psychological pressures of public safety critical work and shift work is a major determinant of fitness for such a position”.

The Respondent did consider the GP’s report contrary to the assertion in the Complainant’s submission. The Respondent submits that there is a distinction between a psychiatrist and an occupational physician; a psychiatrist has no expertise of the train setting, a psychiatrist will diagnose and treat a condition. The occupational physician will relate the condition to any given job.

The Respondent submits that the CMO assesses drivers’ fitness on a daily basis.  He adheres to the relevant guidelines and applies his own judgement. He is required to risk assess any underlying conditions in the context of the demands of the job.  He must take account of the outcome should the driver become impaired.  Even though a risk may be small, moderate or large, if the outcome is catastrophic, then the risk is too great.

In response to the assertion made by the Complainant that the Respondent has changed the reasons on which it relies the Respondent agrees that the initial submissions were inaccurate in this regard but this was due to a misinterpretation of the CMOs instruction made by the Respondent’s solicitor. The CMO’s decision was based upon the underlying condition being controlled by the medication and the question whether it would be controlled with the extra demands entailed in train driving and not upon the potential side effects of the medication per se or in isolation from the condition itself.

The Respondent submits that it is not possible to modify a locomotive driving role to accommodate the Complainant’s condition. The inherent nature of the role is stressful and potentially dangerous and entails responsibility for the lives of hundreds of others. Those carrying out the role are exposed to the suicides of others. These aspects of the role cannot be removed or modified and render it an unsuitable role for the Complainant. The Respondent cites Dublin Bus v McKevitt [2018] IEHC 78 in relation to the role of the CMO in determining whether staff are unfit for work.

Dr Loftus gave evidence at the hearing.  He explained that he is a Specialist Physician in Occupational Health, qualified since 2003 and has completed the process to become a fellow.  Dr Loftus has been working in Occupational Health in CIE since 2003. He outlined his extensive qualifications in the field.

In response to questions, Dr Loftus stated that when performing his duties, he is conscious of the requirements and standards related to safety critical roles and these requirements and standards inform his decision making.  Dr Loftus explained that an applicant for the role of locomotive driver will undergo a battery of medical tests.  Dr Loftus stated that when he was carrying out the medical examination of the Complainant there was a discussion on the Complainant’s medication. Dr Loftus stated that the Complainant was preoccupied on finding out the doctor’s view on the medication.  He told him that more information was needed. 

When asked if he had said to the Complainant that “we don’t hire people with your type o history”, Dr Loftus stated he was 100% sure and that as a matter of fact he did not say that.  When asked if he said that the company does not hire people on your type of medication, Dr Loftus stated that he was 100% he had not said this to the Complainant.

When asked if failing the medical for the locomotive driver role would automatically mean a failure for the RPO role, Dr Loftus replied, “no”, that the medical in question was solely for the role of locomotive driver; if the Complainant had been referred for a medical for the RPO role this could mean either a review of his locomotive driver medical or another medical. In any case, Dr Loftus had never considered his role as an RPO.

Dr Loftus stated that following the medical examination the Complainant was put on hold, pending the review of his medical reports.  Dr Loftus had no more involvement in the matter save sending the findings of the medical examination to the CMO.

In cross examination, Dr Loftus explained that “the office” makes the decisions and he consults; he had filled out the required documentation and sent it to the CMO, however, he is responsible for determining the suitability of candidates against the Regulatory requirements. Dr Loftus stated that no decision was made on the day of the medical examination as he needed more information. Dr Loftus denied he had said words to the effect of, “we don’t hire people with your history” or “we make our own rules around here”.

In cross examination, Dr Loftus again put forward that the Complainant was particularly anxious to get a decision and that he went away dissatisfied that none was given as Dr Loftus was looking for more information. Dr Loftus stated, “I looked for more information and he was put on hold.”

Dr Whelan, CMO for the Respondent gave evidence at the hearing. He explained that he had worked for CIE for 36 years and at the time of the matter in hand had been CMO for 20 years. Dr Whelan listed his extensive qualifications including his fellowship of the RCSI and RCM, where he had been Dean of the Faculty of Occupational Health.

When put to him if the fact that he had not met the Complainant affected his ability to decide on the Complainant’s suitability for the role of locomotive driver, Dr Whelan stated it had not as he decided such things on the medical reports given to him.  In this case his decision was based on the GP’s report indicating the existence of anxiety, the Complainant’s surgical history and the fact that he had been on sertraline for several years.  Dr Whelan had considered Dr Whitty’s report of August 2017, which diagnosed General Anxiety Disorder. He had decided not to recommend the Complainant for the role of locomotive driver because he had had General Anxiety Disorder since 2008 and associated concerns about his ability to sustain concentration when issues arise, for example, people crossing the line. Dr Whelan stated that he considered the chance of impairment multiplied by the outcome of the impairment, for instance, a train driving at speed with 600 passengers aboard.  Dr Whelan stated that he was satisfied he had made the correct decision in this case.  He did not think locomotive driver was a suitable job for someone with the Complainant’s history. Regarding the use of the term enduring, Dr Whelan stated that his take on this was that the context in this case goes back to 2008, was ongoing in 2016 and 2017 and the maximum dose of medication was being used at the time of the medical examination. 

Regarding the RPO role, Dr Whelan stated that the Complainant would have been assessed to a different standard for the RPO role. He was not aware at the time that the Complainant had applied for an RPO role.

In cross examination, Dr Whelan stated that Dr Loftus carried out the examination and then the question of suitability of the candidate moved to him. In making his decision he had considered the medical examination documents and the report from Dr Loftus, which had “informed” his decision. In assessing the matter Dr Whelan stated that drivers are examined in light of the legal requirements and that any guidelines used are advisory.

When asked if he had considered the Complainant’s GP’s report Dr Whelan stated that he had not as this letter post-dated the decision not to employ the Complainant.  When asked if he had considered getting a more up to date report than Dr Whitty’s report, Dr Whelan said he had not due to the longevity of the anxiety and Complainant’s continued use of the medication.

When asked why there seemed to be a greater emphasis on the importance of the Complainant’s medication in the Respondent’s submission than there had been in correspondence around the time that the Complainant was informed that his application had been unsuccessful, Dr Whelan stated that when responding to the individual he would not go into the matter in great detail and because the medical refers to symptoms and that his medication must be taken into consideration.

When asked in cross examination whether there is a general bar on people with Generalised Anxiety Disorder getting a job Dr Whelan stated that it depended upon the impact, duration etc and that hey would have to be off medication.  In this case the Complainant had a long history and stopping taking medication to get a job was not a recommendation he would make.

In conclusion, the Respondent accepts that the Complainant was suffering from a disability.  The Respondent accepts the reason he was refused the job was because of his medical history coupled with his long-term use of medication.

The Respondent submits that if the decision not to employ the Complainant as a locomotive driver was done in compliance with s. 112.1 of the Railway Safety Act, 2005 which replaced s. 29 of the Transport Miscellaneous Provisions Act, 1971, then the Employment Equality Act does not apply as the event complained of is expressly excluded. Section 112 of the 2005 Act requires a medical examination to be carried out by a nominated person and s. 112.3 which requires that person notify the railway undertaking concerned if he finds the person unfit to perform a safety critical task.  The Respondent submits that Dr Loftus complied with s. 112.3. The decision not to employ theComplainant was legitimate and proportionate.

The Respondent also submits that the complaint should be dismissed for the following reasons:

(i) the Respondent’s decision in respect of the RPO role was taken without the knowledge of or reference to the Complainant’s medical condition or the process or outcome in relation to the locomotive driver role. The Respondent did not discriminate against or victimise the Complainant as alleged.

(ii) The Respondent’s decision in respect of the locomotive driver role falls under section 17 of the Employment Equality Act 1998 and nothing in that Act renders that decision unlawful.

(iii) Without prejudice to the foregoing, the Respondent’s decision in respect of the locomotive driver role falls under section 16 of the Employment Equality Acts 1998 and the Respondent was not required to recruit the Complainant to the role.

(iv) Without prejudice to the foregoing, the Respondent’s decision in respect of the role falls under section 37(2) of the Employment Equality Act 1998 and the Respondent was not required to recruit the Complainant to the role.

Section 6 of the Employment Equality Act, 1998, states:

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

This complaint is made pursuant to the Employment Equality Acts on the disability ground. 

Disability

The interpretation section of the Employment Equality Acts provides the following definition of disability:

“disability” means—

(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.”

In this instant case there is agreement between the parties that the Complainant had a disability. I also believe the Complainant had a disability.

 Establishing a prima facie case

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

Section 85A (1) of the Employment Equality Act states:

“Where in any proceedings 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.”

 I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the agreed facts of the case are that, (i) the Complainant is covered by the disability ground and (ii) It is common case that he was not employed as a locomotive driver or RPO by the Respondent.

In considering the third tier of the test, I have noted that the Respondent accepts that the decision to not employee the Complainant as a locomotive driver was because of his disability.

I find that therefore that the complainant has established a prima facie case in relation to his non-selection for the role of locomotive driver and the burden of proof lies with the Respondent.

With regard to his non-selection for the position of RPO the situation is not clear and in those circumstances, I am happy for the burden of proof to fall upon the Respondent.

Regarding the matter of the locomotive driver role, the Complainant asserts that he was unsuccessful in getting the job because the Respondent operates a blanket ban on allpersons who have or have had General Anxiety Disorder and are or have been on medication for the disorder.  This, according to the Complainant, became clear to him during his interactions with Dr Loftus during his medical examination when Dr Loftus told him that “we don’t hire people on that medication” and “we make our own rules around here” (or words to that effect). Such blanket bans fly in the face of the equality legislation where each and every case must be judged on its own merits. The Respondent failed to assess the situation properly by seeking further information of the Complainant and his condition.

Adding to the Complainant’s belief that he was discriminated against, when he sought further explanation from the Respondent’s CMO as to why he was rejected for the role, he asserts that the responses given were different to these given to him at the time of his medical examination and when he spoke with the nurse some days after the examination.

In addition, the Complainant asserts that the Respondent failed to assess whether there was any reasonable accommodation that could have been put in place to allow him progress in the selection process.

The Respondent on the other hand denies it operates a blanket ban in relation to persons with General Anxiety Disorder but rather assesses each application on its own merits.  In this case Dr Loftus denied he had used the phrases alleged by the Complainant, namely “we don’t hire people on that medication” and “we make our own rules around here” (or words to that effect).

 Regarding the decision not to pass the Complainant to the next phase of the selection process, Dr Whelan gave evidence that this was done in light of the medical assessment carried out by Dr Loftus, and the information therein, and Dr Whitty’s 2017 report. Dr Whelan was of the view that the safety critical nature of the job allied to the potential catastrophic outcomes of a passenger train accident were of such a magnitude as to make it impossible for the Complainant to be deemed suitable for the role of locomotive driver. This decision is, according to the Respondent, justified in light of s. 112 of the Railway Safety Act, 2005 and does not breach the 1998 Act.

The Respondent asserts that any confusion surrounding the reasons given for the non-selection of the Complainant for the role are not such as to take away from the core reason; that his condition and/or medication for same made him ineligible for the role.

As regards reasonable accommodation, the Respondent puts forward that the role of locomotive driver cannot be removed or modified to accommodate the Complainant’s condition.

In considering the merits of this case I must take into account what is required of an employer or a potential employer when assessing a person with a disability for a role.

An employer or potential employer cannot discriminate on any of the grounds specified in s. 6 of the Act, except in certain particular circumstances. Section 37, Exclusion of discrimination on particular grounds in certain employments, upholds what would otherwise be discriminatory treatment.  

Section 37(2) states:

(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

In considering the implications of s. 37 I refer to Cunningham V IPS REFERENCE.  In his conclusions Justice XYZ states that “ [I]t may well be that a particular disability will in fact render a person incapable of performing the necessary functions in a particular emergency service.  Everything will depend on the circumstances of the case.”

So, the question to be answered in this case is whether the Respondent was justified in not progressing the Complainant for selection as a locomotive driver in the particular circumstances of the case, (the characteristics and requirements of the role) and in line with the requirements set out in s. 37(2).  Taking into account s. 112 of the Railway Safety Act, 2005 and the demands made upon “a medical practitioner”.  I believe they were. 

Section 112 of The Railway Safety Act 2005, states:

Medical fitness for duty.

112.—(1) A railway organisation may require a safety critical worker to undergo an assessment by a medical practitioner, nominated by the undertaking, of his or her fitness to perform a safety critical task and such person shall co-operate with such medical assessment.

(2) Railway organisations shall ensure that safety critical workers undergo assessment by a medical practitioner of their fitness to perform safety critical tasks.

(3) Where, following an assessment under subsection (1), a medical practitioner is of the opinion that a safety critical worker is unfit to perform a safety critical task, he or she shall notify the railway organisation concerned, by the quickest practicable means, of that opinion and shall inform the safety critical worker of that opinion and the reasons for that opinion.

(4) If a safety critical worker becomes aware that he or she is suffering from any disease or physical or mental impairment which, should he or she perform a safety critical task, would be likely to cause him or her to expose a person to danger or risk of danger, he or she shall immediately notify the railway organisation concerned.

(5) Where a railway organisation receives a notification under subsection (3) or (4), it shall not permit the safety critical worker concerned to perform a safety critical task until such time as an assessment under subsection (1) confirms that he or she is fit to so perform that task.

It was Dr Whelan who decided in light of the medical evidence available to him and with his extensive knowledge of the role of locomotive driver that the Complainant could not perform the role of locomotive driver.  I find the that s. 112 of the 2005 Act, encompasses the decision made by Dr Whelan.

 From the evidence adduced I find the decision not to progress the Complainant for interview for the role of locomotive driver falls within the scope of s. 37(2).

In support of this finding, I refer to Transdev Light Rail v Chrzanowski [EDA 1632] in which the Labour Court upheld as lawful the retirement age of 65 for tram drivers as it held that the imposition of an upper age limit on the retention of tram drivers in order to protect the health and safety of drivers, passengers and the general public is reasonable in the circumstances and can constitute genuine and determining occupational treatment and is legitimate and proportionate.

Regarding the claim that the Respondent operated a blanket ban on persons with General Anxiety Disorder, I find there is insufficient evidence to support this allegation.  This claim was based predominantly on the evidence of the Complainant of what Dr Loftus said to him during the medical examination.  Dr Loftus categorically denied having made the statements as alleged, his evidence was clear and unambiguous; I am satisfied to accept his evidence in this matter.

I do not accept the Complainant’s assertion that the Respondent changed the reason for his being deemed unfit for the role in the period after the medical examination; it may not have been clarified sufficiently at the time, allowing for some confusion. However, a number of reasons were included in the decision not to give the role including the continued use of medication and the existence of the anxiety disorder.

Regarding the question of Reasonable Accommodation, I accept the Respondent’s standpoint that they are of the belief that it is not possible to introduce an accommodation for the role of locomotive driver that would be proportionate and reasonable. In this case the Complainant was a candidate for selection for a role with the Respondent, not an employee, thus making the provision of reasonable accommodation more problematic than if he had been an employee working as a locomotive driver who had developed a disability, where there would have been a greater responsibility on the part of the Respondent to provide an alternative role.

The Complainant was not discriminated against.

The Complainant contends that the RPO role was not offered to him because he failed his medical for the role of locomotive driver and that this amounts to discrimination and/or victimisation. 

The Respondent put forward that the Complainant was interviewed for this role on 16 January 2020 and that the interview panel decided on the day that the Complainant should not be selected and therefore should not be called for medical assessment.  The interview panel were unaware of the Complainant’s medical status and did not take account of it.

Having reviewed the documentation provided by the Respondent, it does seem the decision in relation to the RPO role was made on the day of the interview and that decision was based on other factors not related to the Complainant’s medical status.  It should be noted that the interview for the role of RPO took place on 16 January 2020 and that the medical examination with Dr Loftus took place on 3 February 2020. That being the case I find the Respondent did not discriminate against or victimise the Complainant in regard to the RPO role.

Disability, General Anxiety Disorder, Locomotive, train, employment, medical tests