Complainant

Respondent

Anonymised Parties

Coach Driver

Coach Company

Representatives

  Self

Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00047763-001

20/12/2021

The Respondent is an Irish family-owned coach company. The Complainant was employed by the Respondent as a driver from 27 September 2021 until 2 October 2021 when he was dismissed. 

The Complainant submits as follows:

The Complainant was employed by the Respondent who terminated his employment twice in the space of two days on the 1 October 2021 and the 2 October 2021.  The Complainant believes that he was discriminated against on the grounds of his disability (mental health) although he had informed the Respondent of his disability before commencing employment and again before his employment was terminated.  The Complainant submits that, before he commenced employment, he had informed the Operations Supervisor of the duties that would not suit him due to a requirement to attend online afternoon workshops with mental health services.

The Complainant contends that he received a text at 9.13am on 1 October 2021 from the Operations Supervisor informing him that he could finish up on that date as the job did not seem to suit him.   The Complainant asserts that he was shocked by the contents of the text.  He tried to call the Operations Supervisor but his phone was diverted to another Supervisor who accused the Complainant of using his phone whilst driving the Respondent’s coach.  The Complainant submits that that Supervisor claimed that up to 8 passengers had recorded the Complainant on video which the Complainant maintains was not true.  The Complaint submits that when he refuted the Supervisor’s claims, the Supervisor then accused him of not turning up for his shift the previous day.  The Complainant rejects this allegation and maintains that he has a tacho card which can place him in the Respondent’s coach at the time of his shift.

The Complainant alleges that the coach that was assigned to him had problems which made it unsafe to drive such as: the first aid kit being out of date; intermittent shaking in the steering; and, lights and wipers not working to the required standard.   The Complainant raised these concerns with management as he is obliged by the Road Safety Authority (RSA) and the legislation which regulates the industry.

The Complainant submits that he contacted the Owner of the respondent company on the morning of the 1 October 2021 after speaking to the Operations Supervisor. The Complainant explained what had happened.  The Complainant submits that the Owner then contacted the Operation’s Supervisor to see what had happened that morning. After speaking to the Operations Supervisor, the Owner then called him back and reinstated his job with the promise that all the mechanical issues would be fixed.

The Complainant submits that he returned to finish off his shift that afternoon and was met by a mechanic who replaced the first aid kit as it was out of date, the fire extinguisher and one bulb as he did not have a second bulb for the opposite side fog light. After a road test to investigate the coach, the mechanic deemed the steering to have issues and agreed that if the bus was to undergo a road-worthiness test (CVRT) that it would not pass.  The mechanic brought the coach to his workshop for repair.   The Complainant contacted the Owner who told him to go home for the afternoon and return for his shift on the following Monday when the bus would be road worthy and ready to use. The Owner then phoned the Complainant on Saturday the 2 October 2021 around 11am and terminated his employment yet again saying "it was too much grief". Although, the Complainant explained his disability on the phone call on the 1 October 2021, this did not seem to alter the Owner’s harsh treatment of him for simply trying to do his job.

The Complainant submits that he had made provisions to ensure that commencing employment would not hinder his attendance at the mental health service meetings three afternoons a week. The Complainant contends that this was why he choose the split shift scenario and felt that it would suit him as long as the Respondent company could accommodate his needs.  The Complainant submits that this had been agreed with the Operations Supervisor on 27 September 2021 before he had commenced employment and with the Owner before his job was reinstated on the 1 October 2021.

The Complainant feels that he was unfairly dismissed from his job and suffered direct discrimination where he was treated less favourably than another person would be treated in a comparable situation.

Cross examination of the Complainant by the Respondent’s representative

The Complainant confirmed that he had not completed and returned the application form which he was given on the day of his assessment despite being asked to do so because he did not know who to give it to.

The Respondent submits as follows:

On 23 September 2021, a member of the Respondent’s staff took the Complainant out for a driving assessment.  Due to Covid restrictions in place at the time and the size of the Respondent’s office, the driving assessment was combined with an interview.  The staff member went through the operational side of the job explaining it was a Monday-Friday position on an 18-week rotating roster with some early shifts, some late shifts but mostly split shifts. The staff member was happy with the Complainant’s standard of driving and offered him a position which he accepted. The Complainant was given an application form to complete, and return, before route training would take place.  He was also asked to supply a copy of his qualifications.  The Complainant agreed to drop the required documentation into the Respondent’s office the following Monday, 27 September 2021 but he failed to do.

On 27 September 2021, the Complainant started working with the Respondent.  The Supervisor showed the Complainant the coach allocated to him for duty.  On the afternoon of 1 October 2021, the Supervisor was notified by the Complainant of a number issues with the coach, namely that there was no fire extinguisher on the coach and the first aid kit was out of date. The Complainant also reported that he believed there was an issue with the steering of the coach.  The Supervisor immediately notified these issues directly to management. On inspection, it was found the first aid kit was out of date and was replaced.  However, the fire extinguisher on the coach was found to be in date. The Respondent submits that the Complainant had mistaken the last service date for the expiry date. The Respondent’s mechanic had no facility to check the coach where it was located so it was brought to a garage, where it was found it to be in good working order.

On Monday 27 September 2021, the Complainant informed the Operations Supervisor that he had to do an online course with the HSE and would need to be free mid-mornings in order to complete the course. That week, the Complainant was scheduled for a split shift which meant he was free for the time that he needed to be. The Operations Supervisor informed the Complainant that it would do its best to facilitate a split shift, but that it might not always be possible as it would involve asking other drivers to change their shift pattern. This appeared to satisfy the Complainant.

When requested by the Operations Supervisor for his application documents on the same day, Monday 27 September 2021, the Complainant replied that he would drop them in the following day which again he failed to do.

On Friday 1 October 2021 several complaints were received in relation to the Complainant’s driving. On the afternoon of 1 October, one of the Respondent’s Supervisors received a call from the Complainant. The Complainant was querying what sort of mechanic does not have a bus license. The Complainant continued to make disparaging remarks attacking the professionalism of the Respondent despite being requested not to do so.   As the Complainant continued attacking the reputation of the Respondent, the Supervisor felt he had no option but to end the call.

Separately, on 1 October 2021, the Operations Supervisor received a WhatsApp message from the Complainant listing six shifts for the following week which he was unable to work due to zoom meetings he had during the day. The six shifts equated to one third of his total duties.

On 1 October the Respondent’s Owner received a call from the Complainant to say he had been let go by the Operations Supervisor due to his inability to complete certain shifts. The Owner, having spoken to the Operations Manager, rang the Complainant back to ask him to return to work if he so pleased.

On 2 October 2021, the Respondent’s Owner told the Complainant that it was not working out and that his employment was being terminated. The Complainant was requested to send on his bank details so that any outstanding monies could be paid to him.  However, failed to do so and since then requested the Respondent to desist from contacting him.

Legal Submissions

The Respondent submits that the Complainant has not established a prima facie case of discrimination as required before the burden of proof shifts to the Respondent.  The Respondent relies on the Labour Court decision in Melbury Developments v Arthur Velpetters (EDA0917) in support of its position.

The Respondent submits that the Complainant has not named a suitable comparator as required under the provisions of the Employment Equality Acts (as amended).

The Respondent submits that the Complainant referred to a course he was completing with the HSE but did not give any details about it.  The Respondent further submits that the Complainant attributed his inability to work a third of the shifts allocated to him on his first week after accepting the offer of employment to his commitment to attend zoom meetings.

The Complainant has alleged that he was discriminated against under the Equality Acts as a result of his disability.  The Respondent submits that to-date it is unaware of the disability to which the Complainant refers.  The Respondent cited the Labour Court case An Employee -v- A Worker (EDA1927), where the Court concluded that whilst the employee had reported a different sickness which was not a disability and which was never linked to poor work performance, he did not disclose an actual disability until after he was dismissed. The Court concluded that an employer can only be reasonably expected to provide reasonable accommodation if they are actually aware of the disability and that "it would be ... entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability".

The Respondent submits that the Labour Court determination cited above emphasises that the onus is on an employee to bring a disability to their employer’s attention, that an employee cannot rely on sensitivity or privacy arguments to justify the non-disclosure of a disability, that an employer is not expected to engage in guesswork about an employee’s medical condition, and that an employee cannot belatedly raise a disability as a defence for poor performance at or near an appeal to have their original dismissal overturned.

The Respondent submits that the Complainant has made reference to his mental health in his claim form. The Respondent submits that the Complainant never informed the Respondent of any condition in relation to his mental or physical health either before or after accepting the offer of employment.  The Respondent submits that the first mention of any issue in relation to mental health was when the Owner spoke with the Complainant on 2 October to say things weren’t working out and the Complainant accused the Respondent of discrimination on the grounds of disability.

The Respondent relies on the Labour Court case of A Retail Co-v-A Worker (ADE/18/9) where the Court provided a definition of disability under the Employment Equality Acts.  The Respondent submits it was never informed of any medical condition or disability which affected the Complainant.   The Respondent submits that, therefore, engagement in relation to, or the provision of, reasonable accommodation was not necessary. 

Direct evidence of the Operations Supervisor

The Operations Supervisor said that the Complainant did not inform him in advance of commencing his employment with the Respondent that he was suffering from a disability.  The Operations Supervisor confirmed that the Complainant indicated that he would not be able to do some of this rostered shifts as he was doing a course with the HSE.  The Operations Supervisor submitted that the Complainant did not indicate the nature of the course.  The Operations Supervisor said that he would do his best to facilitate the Complainant but could not give him any guarantees. 

The Operations Supervisor submitted that the failure of the Complainant to submit is application form as requested rang alarm bells with him. 

The Operations Supervisor said that the Complainant sent him a message via WhatsApp on 1 October 2022 to say that he could not do 1/3 of his shifts the following week due to Zoom meetings.

Direct evidence of the Owner

The Owner said that he spoke to the Complainant on 1 October 2021.  The Complainant said that he had been sacked by the Operations Supervisor because he could not do all of his shifts.  The Owner told the Complainant that if he wanted the job, he had to do what he was meant to be doing.

The Owner said that during the course of the conversation, the Complainant “lacerated” the Respondent company and said that he had no hesitation breaking a man’s jaw if there was any hassle.  The Owner said he did not want any violence in the workplace so that he did not confirm the Complainant’s dismissal during the phone call while he was still on site.  The Owner phoned the Complainant the next day to say that it was not working out, there was too much grief.

The Owner phoned the Operations Supervisor who told him that a complaint about the Complainant had been received.  The Owner knew that as the complaint was coming from a client and not another driver, it was not hearsay.  The Operations Supervisor also told him that the Complainant had not returned his application form and this caused him concern.

The Owner submitted that the first time he heard of the Complainant’s disability was on Saturday 2 October 2021, when he phoned the Complainant to confirm his dismissal.  The Owner confirmed that he did not know what the Zoom meetings were about.

The Owner confirmed that the Respondent had a policy of accommodating employees with a disability provided that it had been made aware of the disability.  The application form, which the Complaint had not completed, required the job applicant to fill in the details of any disability they had.  The Owner said that if a prospective employee indicated on their application form that they suffered from a disability, the Respondent would seek a doctor’s letter confirming the applicant’s fitness to work.  As the Respondent would not be inclined to employ a driver who was on medication which might affect their driving, information with regards to what medication, if any, an applicant was on would also be sought.

Cross examination of the Owner by the Complainant

The Complainant indicated that he had recorded his conversation with the Owner on 1 October 2021 and asked if he could play it at the hearing.  The Owner responded that he did not know that the conversation had been recorded but that he had no objection to it being played.

During the course of the conversation, the Complainant mentioned that he had mental health issues.  On the recording, the Complainant can be heard saying that “I’ll fracture their jaw for them if they attack me”.

The Complainant contends that he was dismissed due to his disability.  The Respondent disputes this and asserts that the Complainant was dismissed for other reasons not connected with his disability.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.  It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination. However it must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. 

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

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

“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;”

From the evidence adduced, it is clear that there is a dispute as to whether or not the Complainant notified the Respondent of his disability in order to avail of the protections afforded to her as an employee with a disability under the Employment Equality Acts.

Valuable guidance as to what is required in the context of an employee not disclosing his or her disability is provided by Advocate General Sharpston in her opinion in Case C-270/16, Ruiz Conejero v Ferroser Servicios Auxiliares. In her opinion, the Advocate General found that the obligation to provide reasonable accommodation was only triggered “where the employee has told his employer of his disability and its extent, together with all relevant surrounding circumstances”. The Labour Court has also confirmed that, before an employer can be answerable for disability discrimination, he or she must have actual or constructive knowledge that the employee was disabled: Swan O'Sullivan v Counihan.

The Complainant contends that he made the Operations Manager aware of his disability before he commenced employment with the Respondent.  However, in his evidence, the Operations Supervisor disputed the Complainant’s assertion.  Furthermore, the Operations Supervisor noted that if the Complainant had completed, and returned, the application form, he would have been required to provide information on any disability which affected him.  As the Complainant had not completed, and returned, the application form, the Respondent was not on notice of his disability.  I found the Operations Supervisor to be a truthful witness and I accept his version of events. 

My preference for the Operations Supervisor’s evidence over that of the Complainant is supported by the oral evidence of the Owner, where he said that the Respondent had a policy of providing reasonable accommodation to employees with a disability.  The Owner said that if a prospective employee indicated on their application form that they suffered from a disability, the Respondent would seek a doctor’s letter confirming the applicant’s fitness to work.  As the Respondent would not be inclined to employ a driver who was on medication which affected their driving, information with regards to what medication, if any, an applicant was on would also be sought.

In light of the evidence put before me, I am of the view that if the Complainant had informed the Operations Manager of his disability before commencing employment, he would have been requested to provide further information including a doctor’s letter.  In his evidence, the Complainant did not mention any such request.

Accordingly, I find that the Complainant has failed to establish facts from which an inference of discrimination can be drawn. I find, therefore, that the Complainant has failed to discharge the burden of proof as required by the legislation.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the Complainant has failed to establish a prima facie case of discrimination on the disability ground and, accordingly, I declare that the complaint, in its entirety, is not well founded.

Disability – failure to establish a prima facie case