Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Mr Rory Treanor BL instructed by Crushell & Co

 Mr David Horgan Stratis Consulting

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-00052315-001

19/08/2022

This matter came before the WRC dated 19/08/2022 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The Complainant at all material times was employed as a bus driver in receipt of a salary of €40,000 per annum.  The Complainant was employed by the Respondent from 20/01/2020 until he resigned his employment on 02/08/2022.  The Respondent is a private transport company.   

CA-00052315-001

The Complainant claims that he was discriminated against on grounds of disability and that the Respondent failed to provide reasonable accommodation.  The Complainant claims he was constructively dismissed on grounds of his disability.  The Respondent denies all claims.

Written factual and legal submissions were filed by both parties.  The Complainant filed submissions on 05/07/2023.  The Respondent filed submissions on 06/07/2023.  The hearing took place on 07/07/2023.   

The Complainant was diagnosed with myotonic dystrophy in late 2021 and he was told that he could continue driving a bus but that he should inform his employer of his diagnosis.  Myotonic dystrophy is an inherited multisystem condition that mainly causes progressive muscle loss, weakness and myotonia.  It can also affect other parts of your body, including your heart, lungs and eyes.  There’s no cure, but certain treatments and therapies can help manage symptoms and improve quality of life. 

The Complainant submits there is no evidence, whatsoever, that the Respondent engaged in any effort, of any kind, to find alternative work for the Respondent, who was suffering from a recognised disability.  In early 2021, the Complainant approached the Respondent about disclosing a medical condition and was referred to Medmark. 

On 04 March 2022, Dr BA, an Occupational Health Physician with Medmark, wrote to the Respondent Head of People and stated that “in line with NDLS guidance, concerning Group 2 licensing, the presence of a progressive neurological disorder precludes Mr X from driving a public service vehicle”.  This report also required that the Complainant visit a cardiologist before he be certified as fit to work.

The Complainant submits he was quite surprised and distressed by this report, as earlier that day Dr BA had told the Complainant that he was in fact fit to work.   Over the next six weeks, the cardiologist decided to do a new ECG.  The Complainant’s appointment to see this cardiologist was cancelled due to Covid-19.  It was not until 11 April 2022, that the Complainant finally got to see a doctor, who confirmed that everything was fine with his heart.

On 13 April 2022, the Complainant wrote to Medmark.  He explained that he had been required to supply an ECG and letter from his cardiologist despite the fact that in 2022, the cardiology department in Beaumont Hospital had cleared him to work.  He stated: “Getting an ECG and letter from the public health system on short notice is difficult enough, but even more so in a pandemic.  I am now on my 6th week off and have finally managed to obtain the information I need, which has confirmed what I already told the doctor on 04 March 2022 – I have no heart problems.”  Can you please ensure that this letter and the ECG are dealt with with the upmost urgency so that I canreturn to work ASAP.  I have a mortgage and bills to pay and cannot miss any more work”.

On 19 April 2022, the Complainant sent an email to the Respondent entitled “Back to Work”.  It read: “Is it possible for someone from HR to call me today about an update on me being allowed back to work?” 

On 20 April 2022, the Complainant emailed OL.   He stated: “I have spent several weeks trying to get this information from Beaumont Hospital – not the easiest task in a pandemic.  I finally got it and now Medmark is asking for more information.  I am currently not being paid and am extremely stressed by this situation.  My dealings with Medmark have been horrendous.  I have left several messages for the doctor in question to ring me but these have been ignored.   I have no idea if I can claim any social welfare and am very concerned about paying my mortgage and bills.  I have seen a number of consultants in Beaumont, all of whom said I was fit to work, so I am beyond frustrated with this situation.  Any help you can provide would be greatly appreciated.”

On 09 May 2022, the Complainant emailed the Respondent.   The subject line of the email was “What’s Next?”. The email read: “I’m just wondering what is happening with me going back to work.  Has a driving assessment been scheduled for me?  This has gone on too long and I need to get back to work.  Also, I was told last week someone from HR would contact me about coming in to route train. I have heard nothing about this either.”

On 23 May 2022, Dr BA rang the Complainant for the first time since she had spoken to him on 04 March 2022.  She informed the Complainant that Medmark was certifying him as unfit to drive.  This was despite the fact that he had not done a medical driving assessment.   In a report dated 20 May 2022, Dr BA wrote “It is my clinical opinion that Mr X is not fit to safely drive a public service vehicle.  I do not support proceeding with a driving risk assessment.”

On 25 May 2022, the Complainant emailed the Respondent.  The email was titled ‘Not Heard From HR”.   The email reads: “I have been waiting on some sort of contact from HR since Monday.   It is now Wednesday, and I have still heard nothing.  I have rung and have emailed to no avail.  If I come in tomorrow will there be someone to see me?  This has become very urgent as I have not been in work for 12 weeks now.  I would appreciate a reply today on this.”

The Complainant submits that finally on 25 May 2022, he was notified that a formal meeting would take place the next day, 26 May 2022. 

On 02 June 2022, the Complainant emailed the Respondent.  The title of this email was “Need to Work”.  The email read “I need some kind of work to go ahead now.  I will not be able to pay my bills soon.  I need to be working now.  It has been three months not in work.  Some kind of support from the company would really be appreciated now.  I have been left in the dark for long enough.  Please respond to this email”.  The Complainant submits it is clear from this email how distressed he was at this stage.  The Complainant submits he felt abandoned, at an extremely hard time in his life, by a company which he had served loyally for two years.

On 01 June 2022, the Complainant wrote to the Respondent and again begged for some update as to when he would be redeployed.  At this point, the Complainant had absolutely no idea how he was going to continue to provide for his family.  He wrote: “Further to our meeting on Friday and pending an appeal about my fitness to drive, I still have not been given any information about redeployment.  This is of the utmost urgency.  Can you please let me know what is happening?”

On 08 June 2022, the Complainant sent an email to the Respondent stating “It looks like the neurologist is not going to pass me to drive a bus.   Where do we go from here?”. 

On 24 June 2022, the Complainant wrote to the Respondent Operations Manager.   He wrote: “I have been working in the Respondent company since January 2020.  I have been a strong worker throughout my time at the company.  I have had no disciplinary issues, I am punctual, never ring in sick and often work overtime for the company.   I have continually made it clear to the Respondent company since last March that I am willing to work.  In fact, I have requested other opportunities on several occasions all to no avail. These requests were made via email as well as in person, including in our meeting on May 27 I have sought advice on this issue and under the Employment Equality Acts, where an individual is incapable of performing the roles, they were hired for, the employer has an obligation to make a determination as to whether there is suitable alternative employment or whether any reasonable adjustment or accommodation can be made in respect of the impacted employee’s terms and conditions.  I had suggested route training several times as an interim possibility, however whenever I enquired about this, I was simply told someone would get back to me I feel that the company has not provided me with any reasonable accommodation I have genuinely loved working in the Respondent company, which makes this whole situation all the more upsetting.  I absolutely do not want to have to go down a legal route and am hoping for an amicable resolution of these matters.  However, I am now almost four months out of work and out of pocket and quite frankly, the distress this has caused my family and I has been immense. I sincerely hope we can reach an amicable solution.”

The Complainant submits the Respondent’s treatment of him during this time is shocking.  It is submitted the Respondent made no genuine effort to reasonably accommodate him as they are legally required to do.  The Complainant submits he made the very tough decision he had no alternative but to resign from his post. 

The Complainant submits the Respondent was on full notice that the Complainant suffered a disability within the meaning of section 2 of the Employment Equality Act 1998.  The Complainant’s disability was self-evident, and the Respondent’s own doctors confirmed same. 

The Complainant submits the employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act 1998.  The Complainant submits that the failure of the Respondent to consider the Complainant’s disability when allocating alternative duties, constitute a failure to provide him with a reasonable accommodation in accordance with the Act. 

Summary of direct evidence of the Complainant:

The Complainant is a gentleman of 47 years of age.  He describes his role with the respondent company as that of bus driver.  Prior to joining the Respondent company in 2020 he had been employed as a courier for a stationery supplies company.  He was employed in a temporary capacity initially with the Respondent company and then on a permanent contract when he obtained the required licence.  The Complainant states he was diagnosed in late November 2021.  He states it “hasn’t changed his life in any way”.  In terms of long-term effect, he states he really does not know what to expect.

The Complainant states it was the consultant neurologist who advised him to inform his employer, but he states it took him a while to do this as it was a lot to take in.  He received an email from the Respondent on 18/02/2022 notifying him of an appointment with Medmark for 21/02/2022 after he had informed the Respondent by email on 14/02/2022 of his diagnosis.  The Complainant submits he did not attend on that date, and it was 04/03/2022 when he had his consultation with Dr BA in Medmark. 

The Complainant states he was initially told by Medmark that he could go back to work that day but 3 hours later his wife received a phone call from Medmark requesting that further medical information was required. 

The Complainant’s representative takes him through the emails sent to the Respondent from the first email advising of his diagnosis in February 2022 the content of which is set out above under the summary of the Complainant’s case.  The main thrust of this evidence of the Complainant was that many of his emails failed to elicit a reply from HR. 

The Complainant states he raised the possibility of an alternative role of route training (also known as mentoring) because he said he knew it was being done by someone else and the Respondent operations manager had said it was an option that could be explored.  The Complainant states that he received a phone call from OL on 09/05/2022 and this was the first time he heard from HR. 

The Complainant refers to the phone call he received from Dr BA from Medmark on 23/05/2022.  He states it was a short phone call and he was shocked that he was not being allowed back to work. 

The Complainant states he tried to organise a driving assessment by himself but before he could arrange this it was retracted by Medmark. 

The Complainant outlines his financial circumstances were by this time were difficult as he was in receipt of social welfare and savings were being eaten into to satisfy mortgage and other financial commitments.

At the meeting on 27/05/2022 the Complainant states there was nothing available in route training and they were overstaffed as it was in facilities.  The Complainant states he kept asking what was going to be done.  The Complainant states it was he who always raised the topic of alternative work.  He could not undertake the route training (mentoring) job because that required being able to drive a bus. 

The Complainant confirms he was accompanied by his SIPTU representative to all meetings.  He states there was no reply to his letter to the Operations Manager.  The Complainant states he brought this letter to a subsequent scheduled meeting on 24/06/2022.   

The Complainant makes reference to the response to his resignation letter which he described a short and sweet.  The Complainant states he never missed a day while he worked there.  He was never late and always available to do overtime if asked.  He states he had always had a job and not being able to work was difficult for him mentally and financially.

Summary of cross-examination of Complainant:

The Complainant was asked if he accepted that his role as a bus driver is subject to strict regulation.  The Complaint responds that he passed medicals one of which was before his diagnosis and then after and he was declared fit. 

The Respondent representative refers to the outcome of his consultation with Medmark with specific reference to the following extract: “It is my clinical opinion that Mr X is not medically fit to safely drive a public service vehicle (PSV).  In view of his diagnosis and with reference to the NDLS guidelines, I do not support proceeding with a driving risk assessment.  I have consulted with my senior colleagues in Medmark with regards to fitness to drive a PSV with this condition and they have also concurred with my clinical judgment in this regard.  Mr X is now required to declare his medical condition to the National Driving Licensing Authority”.

The Respondent representative asks the Complainant if he can understand why the Respondent company could not permit him to now drive a bus.  The Complainant replies that his own consultants have passed him fit.  It is put to the Complainant that Medmark has in fact engaged with his consultants.  The Complainant states he totally understands the strict requirements but that he would have looked at any job.  When it is put to the Complainant that the core function of his role is that of bus driver he accepts this.   

The Respondent representative makes reference to Dr Whelan’s report of 15/08/2022 asks why he did not wait for the report to issue rather than tender his resignation on 02/08/2022 thereby depriving the company of the opportunity to consider the contents of the report.  The Respondent representative puts it to the Complainant that he had no way of knowing what was going to happen.  The Complainant states he had received nothing from the company and he did not expect that to change.

The Respondent representative asks the Complainant if he acknowledges everything was slower in the medical world hospital appointments etc because of Covid and that Dr BA from Medmark needed to consult with colleagues including the Complainant’s own neurologist.  The Complainant does not accept this. 

The Respondent representative makes reference to the company exploring the possibility of a driving assessment but this option was negated by Medmark and the Complainant was asked if he agreed that the company’s hands were tied in this regard and he accepts that yes when it comes to driving (hands were tied).  The Respondent representative puts it to the Complainant that alternative options were explored with him during the face-to-face meetings in May and June.  The Complainant states that it was he himself who came up with those options.  

The Respondent representative puts it to the Complainant that it would be fair to say the company was engaging with him and this is accepted by the Complainant.

The Respondent representative asks the Complainant if he followed up with the National Driver Licence Service (NDLS) and he states he never got a reply from them.  The Respondent representative asked if the Complainant did anything about obtaining information on the status of his D Licence as requested and put it to the Complainant that the onus was on him to follow up on the D Licence and he failed to do so.  It was put to the Complainant that the role in facilities also involved driving and the Complainant does not accept this and states the facilities role is on company grounds.   He states he was told there was no room in facilities anyway. 

The Respondent representative asked the Complainant why did he not wait for further engagement with the company and in reply he states he could not wait around and his savings were gone. 

The Complainant accepts when it is put to him that the vast majority of roles in the company require the requisite type of licence and accepts the requirement to be medically fit.  The Respondent representative asks the Complainant what he expected the company to do and he states he expected them to look into it but there was no response to his emails.  The Respondent representative puts it to the Complainant that the company did explore options and the Complainant responds that the driving assessment was on his back (he suggested this).  The Complainant states he was paying for the assessment but the company were giving him a loan of a bus.  

Under re-direct the Complainant representative refers to a specific email sent on 19/04/2022 and asks if there was any contact on foot of that email.  The Complainant replies he has only received one or two phone calls throughout.  The Complainant states he was not informed of any other roles in the company for which he could apply.

The Respondent representative puts it to the Complainant that all roles are advertised on the company App which the Complainant accepts.  The Complainant states there was no point in having the App.  He had never needed it as all the rosters were on the notice board when he needed to see them. 

The following case law is cited by the Complainant in support of his case:

Waterford Senior Care Limited v. Liam Tabb [EDA 1926]

An Post v. Stephens [DEC-E2018-005]

Houses of the Oireachtas v. Thomas Hickey [EDA 1918]

A Worker v. An Employer [EDA 1927]

Mitchell v. Southern Health Board [2001] 12 ELR 201

Melbury Developments v. Valpeters [EDA/0917]

Nano Nagle v. Daly [2019] IESC 63

Lee T/A Peking House v. Fox [EED 036]

The Respondent submits that as a professional bus driver, the Complainant was categorised as a Group (Class) 2 driver by the Road Safety Authority (RSA) and he required a specific bus licence which was contingent on his medical fitness to meet the relevant national medical guidelines for bus drivers.  The Respondent submits it has obligations to ensure the safety of its employees, the passengers carried by its buses and members of the public who come into contact with its buses and discharges those responsibilities by applying a wide range of safety measures. 

One of the safety measures taken by the Respondent is to ensure medical fitness for its bus drivers in accordance with the Road Safety Authority Medical Fitness to Drive Guidelines.  The Respondent has pre-employment medical checks to ensure that bus drivers are medically fit to perform their role in a safe manner and that they meet the required regulatory standards.  The Respondent submits the Complainant would have been familiar with the Respondent’s policy and procedures in relation to medical fitness. 

The Complainant attended a pre-employment medical on 30th October 2019 which he successfully passed.  The Complainant’s contract of employment expressly states: “During and throughout your employment the Company may require you to submit to a medical examination or to give permission for a medical report to be obtained from your doctor, or the Company’s doctor, should the Company deem it necessary.  Medical information will be considered throughout the course of your employment to determine the ongoing suitability to undertake bus driving duties.”

The Respondent company and SIPTU have concluded a collective agreement that applies to the grades represented by SIPTU and one of the important matters agreed between SIPTU and the Respondent is a clause in respect of Health and Safety.  The Respondent submits the job description for the role of bus driver places an obligation on employees to notify their employer in the event that their medical condition changes in a manner that would impact on their ability to drive a bus safely. 

The Respondent submits the Complainant emailed HR on 14/02/2022 advising that he was recently diagnosed with a medical condition which he was told he should inform his employer about and he was enquiring how he should go about this.  On foot of this email the Complainant was referred by the Respondent for an occupational health assessment with Medmark, the Respondent’s Occupational Health Physician, which took place on 04/03/2022. 

The medical decision regarding the Complainant’s fitness to drive buses was deferred by the Occupational Health Specialist, Dr BA, pending feedback from his treating neurologist with clarification concerning his diagnosis and he was stood down from driving duties on 04/03/2022 based on medical guidance. 

Throughout the medical assessment process, the Complainant submitted relevant medical evidence to the Respondent’s Occupational Health Specialist(s) for their consideration prior to any determination issuing in respect of his ability to drive buses safely in line with the medical fitness to drive guidelines issued by the RSA including from his treating neurologist. 

The Respondent submits that whilst awaiting the outcome of the occupational health medical assessment the Respondent HR Department explored the possibility of an Occupational Therapist carrying out an onboard assessment, based on the consultation the Complainant had with Dr BA on 04/05/2022. 

A letter issued by Dr BA on 20/05/2022 held as follows:

“It is my clinical opinion that Mr X is not medically fit to safely drive a public service vehicle (PSV).  In view of his diagnosis and with reference to the NDLS guidelines, I do not support proceeding with a driving risk assessment.  I have consulted with my senior colleagues in Medmark with regards to fitness to drive a PSV with this condition and they have also concurred with my clinical judgment in this regard.  Mr X is now required to declare his medical condition to the National Driving Licensing Authority”.

The Respondent arranged a meeting with the Complainant on 27/05/2022 to discuss his situation.  The meeting was attended by the Complainant, his SIPTU representative, OL from HR and the Respondent Operations Director to discuss the impact of the report including discussion of possible alternative roles/options.  The Complainant was informed of his entitlement to appeal the medical decision by Medmark. 

The Respondent submits alternative roles identified during these discussions required the employee to be deemed medically fit to drive buses, as they involved bus driving.  The Complainant was advised that he was entitled to apply for other roles within the organisation as they became available which would not involve driving a bus, and the situation would be kept under review pending further medical input. 

The Respondent submits the Complainant was provided with the contact details of the Road Safety Authority in the event he wished to appeal the decision directly to them and was offered an external second medical opinion with another occupational health physician with PSV driving assessment experience.  The Complainant appealed Medmark’s decision internally and a medical assessment was arranged with Dr Declan Whelan, Occupational Health Specialist (former Chief Medical Officer for CIE) to take place on 25/07/2022 which was notified to the Complainant.  The Respondent submits the outcome of the appeals process was in no way predetermined. 

The Respondent company arranged a further meeting with the Complainant on 17/06/2022 to discuss his situation again.  The meeting was attended by the Complainant, his SIPTU representative and OL from HR together with the Operations Director to discuss the impact of the initial report once again, including possible alternative roles. 

At this time, both the Complainant and Respondent were awaiting the outcome of the medical assessment appeal which had yet to take place but was scheduled for 25/07/2022.  The Respondent submits this outcome was to be factored into consideration as to whether the employee was or was not required to be reasonably accommodated and in what form, if any, would this take subject to the employer’s obligations. 

The Respondent submits that for the purposes of timeline, it is important to note that the Respondent had received the initial medical report from Medmark on 20/05/2022 when the discussion on 17/06/2022 was taking place (less than four weeks after the report issued) and a further medical opinion from the appeals process had not yet issued that would have further assisted in determining the requirement to reasonable accommodate the employee or otherwise. 

The Respondent submits the Complainant resigned from his employment with immediate effect by way of letter dated 02/08/2022.  The Respondent submits subsequent to the resignation a letter issued to the Respondent HR department dated 15/08/2022 from Dr BA in which she outlined the medical appeal outcome issued to Medmark by Dr Whelan which states as follows: “I have reviewed the outcome of the independent assessment of Mr X in relation to his appeal assessment carried out by Dr Declan Whelan, Occupational Health specialist to Dublin Bus.  He has advised that in line with NDLS guidance, concerning Group 2 licensing (which includes public service vehicles – PSV), that the presence of a progressive neurological disorder precludes Mr X from driving a PSV.  A copy of this report will be available to Mr X.”

The Respondent submits the company was not in a position to engage with the Complainant in respect of the medical appeal outcome or indeed to explore further options as regards to his role or other roles or accommodations due to the Complainant’s resignation.  The Respondent further submits the Complainant’s resignation was premature and took place prior the medical appeals process concluding, and it did not afford the Respondent to take into account the full medical facts prior to providing a full and comprehensive response to the situation. 

The Respondent submits that whilst a number of meetings were held with management in May and June, no formal grievance was raised by the Complainant, despite the fact that the Complainant was represented by SIPTU throughout.  The Respondent submits by tendering his resignation before the medical appeals process was concluded the Complainant deprived the Respondent from exploring further possible options within the company with regards to his role and/other roles. 

The Respondent submits it had not concluded its analysis or decision making in respect of any possible reasonable accommodation as the medical appeals process was not completed.  The Respondent submits the Complainant did make suggestions prior to the appeals process concluding and these suggestions were considered at the time, but they were not deemed viable as the roles required the ability of the person undertaking them to have the capacity to drive buses safely and legally, something which the Complainant was precluded from doing. 

The Respondent submits that placing an additional person on site who could not drive buses in a role that was not required would have created a disproportionate burden on the Respondent from a cost perspective which is not required under the Act. 

The Respondent submits the fact the reasonable accommodation is not provided is not enough to infer discrimination and submits the Complainant has provided no substantial basis of less favourable treatment. 

The Respondent respectfully submits that the professional driving of a bus is subject to certain conditions that are enshrined in law and regulatory guidelines and that the Respondent is obliged to ensure that they are complied with in line with its obligations on the Safety Health and Welfare at Work Act 2005 and the Road Traffic Acts 1961 (as amended). 

The Respondent submits there is a clear safety reason that all bus drivers in the Respondent company (and in Ireland) must pass the medical tests and therefore there is clear objective justification for the decision of the company in respect of its decision not to permit the Complainant to undertake bus driving. 

Summary of the direct evidence of Respondent witness OL:

OL confirms she received email from the Complainant on 14/02/2022 regarding a medical condition he needed to disclose.  OL emailed him back with Medmark appointment details.  The Complainant did not attend that appointment and an alternative appointment was scheduled for him by OL.   

OL states that on 19/04/2022 she received a request from the Assistant Operations Manager to call the Complainant as she had received an email from him that she (Assistant Operations Manager) was not able to deal with herself. 

OL states she called the Complainant on the following day, 20/04/2022, and he requested a letter for social welfare.  She provided this letter by return.  OL states that in a formal meeting with the Complainant on 27/05/2022 driver mentor positions and cleaner shunter positions were discussed. 

OL states that all available roles in the company are advertised on the App and on the notice boards in the common areas and a recruitment process is followed as the company has to be seen to be fair to all other employees.

On 15/08/2022 the report came back from Dr Whelan and the company had been awaiting the outcome.   The Respondent did not ask the Complainant to reconsider his decision to resign as they respected his decision to do so.  OL states the company could not do anything to expedite the medical processes when asked if there was any more she could have done to do expedite same.   

Summary of cross-examination of OL:

The emails from the Complainant to HR formed the initial thrust of the cross-examination of OL by the Complainant’s representative which he stated she had the opportunity to review and he queried with her in particular what the responses were, if any, to a number of specific emails.  OL states she is unsure of what the responses were in some cases and in others she states she does not believe she replied.

The Complainant representative asks what the Respondent’s response was to the letter from the Complainant to the Operations Manager.    OL states she does not believe there was a written response as matters including the medical report and alternative work were discussed when the Complainant presented the letter at the scheduled meeting. 

The Complainant representative asked OL what evidence she could provide that she was supporting the Complainant.  OL responded that this was during the pandemic and they were still required to work from home.  The Respondent representative put it to OL that the pandemic was no excuse for her conduct. 

The Respondent put it to OL that the Complainant was not invited to reconsider his position when he retired. 

The Complainant representative sought documentary evidence of the roles that became available and OL states she did not have that with her.  OL confirms all roles within the company are advertised by email, on the App and on the notice boards in common areas and that the Complainant would have to follow the recruitment processes the company has in place.  The Complainant representative put it to OL that this is not just a mere failure to respond to emails but the Respondent has failed in its duty to explore reasonable accommodation.  

The Complainant representative asked about employee turnover in the company and queried how many left and started from the commencement of the Complainant’s sick leave to his resignation.  OL was unable to provide that information. 

The following case law is cited by the Respondent in support of its case:

McCormack v. Dunnes Stores [UD1421/2008]

Beatty v. Bayside Supermarkets [UD142/1987]

Cork City Council v. McCarthy [EDA21/2008]

G4S v. Donnelly [EDA219/2021]

Nano Nagle School v. Daly [2019] IESC 63

CA-00052315-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The issues for consideration by me in the within complaint are as follows:

(1) whether or not the Complainant was subjected to discriminatory treatment on the grounds of his disability contrary to section 8 of the Act;

(2) whether as a person as with a disability within the meaning of section 2 of the Act, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to section 16(3) of the Act; and

(3) whether or not the Complainant was dismissed for discriminatory reasons. 

The first issue that I will consider relates to the claim of discrimination on grounds of disability. 

(1)    Claim of discrimination on grounds of disability:

The Relevant Law:

Section 6 of the Employment Equality Act, 1998 states:

6.—F14(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”).

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

Disability:

The interpretation section of the Employment Equality Act, 1998 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 withoutthe 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 the instant case it is not disputed that the Complainant has been diagnosed with a medical condition.  It is not disputed that the Complainant has a disability within the meaning of section 2 the Employment Equality Acts 1998-2015 (the “Acts”) as a result of which he is unable to fulfil his role as a bus driver.   In the circumstances I find that the Complainant’s medical condition clearly constitutes a disability within the meaning of section 2 (1) (c) of the Acts.  

Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. 

Section 85A (1) provides as follows:

—(1) “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.”

This requires a 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 so doing, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has consistently held 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 a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  This requires that the 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 they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In line with the well-established Labour Court authorities of Mitchell v. Southern Health Board [2001] ELR 201 and Valpeters v. Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case.  If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of a respondent, then the inference or presumption is quickly raised; it falls on a respondent to show there was no breach of the principle of equal treatment.  A complainant’s “mere assertions” will not raise an inference of discrimination where there are relevant facts that a complainant can be expected to ascertain. 

The Equality Officer in Minaguchi v. Mr Ray Byrne T/A Wineport Lakeshore Restaurant [DEC-E/2002/20] stated as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

·       That s/he is covered by the relevant discriminatory ground(s).

·       That s/he has been subjected to specific treatments; and

·       That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

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

The wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

In cases involving less favourable treatment, a comparator can be actual or hypothetical and in this I am guided by Henry Denny v. Rohan [EDA1310] where the Labour Court followed the decision of the House of Lords to that effect in Shamoon v. Chief Constable of the RUC [2003] IRLR 258.  Where the treatment complained of is because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic.  An appropriate comparator could be a person in a similar role who does not have a disability or a person who has a different disability.  In the within case no named comparator with a different disability was put forward for consideration and, therefore, it follows that the appropriate comparator in this case is a person in a similar role who does not have a disability. 

The Relevant Facts:

The Complainant was diagnosed with myotonic dystrophy in late 2021 and he was told he could continue driving a bus but that he should inform his employer of his diagnosis.  In the afternoon of Monday 14/02/2022 the Complainant emailed the Respondent (OL in HR) and advised he had recently been diagnosed with a medical condition of which he had been told he should notify his employer and he was “enquiring how he should go about this”. 

OL replied to the Complainant on 16/02/2022 thanking the Complainant for his email and stating she would refer him on to Medmark for an Occupational Health Assessment to ensure his medical condition does not affect his driving capabilities.  The email concluded as follow: “if you would like to give me a call on this please do and I will then schedule an appointment.”  On 17/02/2022 the Complainant emailed OL to say yes he would like an appointment with Medmark.  OL emailed the Complainant on 18/02/2022 to provide him with details of the Medmark appointment.  I am satisfied the Respondent reacted as appropriately and as quickly as possible when the Complainant advised them of his diagnosis. 

Notwithstanding, the Medmark process itself, which I am satisfied was completely independent of the Respondent as it should be, was perceived as a lengthy process by the Complainant and I note he describes himself in an email to the Respondent on 30/05/2022 as “really sick of being trapped by Medmark now”.  The Complainant attended at Medmark on 04/03/2022 and Dr BA issued her report on 20/05/2022.  It would be way outside of my remit to comment or make any observation whatsoever on whether or not this was a lengthy process but in the Complainant’s perception it was (a lengthy process). 

In the intervening period between the initial appointment and the issuing of the medical report by Medmark there was a requirement for further medical information to be obtained from a cardiologist and a neurologist.  Reports issued by the aforesaid additional medical disciplines would inform the final report from Medmark as it would appear the Complainant’s medical diagnosis and the ensuing ramifications involved input from a multi-disciplinary medical team. 

This caused even more frustration for the Complainant.  While I acknowledge the hospital medical appointments with the consultants were not scheduled as expeditiously as the Complainant may have wanted or expected, I am satisfied any delays in the medical process as perceived by the Complainant, are in no way attributable to the Respondent. 

Notwithstanding, the Complainant’s sense of frustration throughout this process is palpable both from the account provided in the written submission and also from the direct evidence of the Complainant at hearing.  I got a sense from the Complainant that he appeared to dispute the validity of the medical report provided by Medmark and based on my observations at hearing, it was apparent that he disagreed with the report.   However, an employer goes to considerable expense when contracting an occupational health provider and in the absence of robust contradictory medical evidence, the Respondent is entitled to regard that medical opinion as safe and valid. 

I note the Respondent in the within case went over and beyond what is required because a second opinion medical opinion was provided for by means of an appeal to an independent occupational physician with PSV driving assessment experience who is considered an expert and the leading authority in this area and a former Dean of the Faculty of Occupational Medicine in the Royal College of Physicians of Ireland.  The Complainant availed of this consultation.   

The Complainant’s frustration is evidenced by the number of emails he sent to HR throughout this time a number of which were unanswered which exacerbated his sense of frustration even more.  I note the Complainant also made numerous attempts to contact Dr BA throughout this time as evidenced by the 20+ requests he states he made to her to call him.  The Complainant states he emailed Medmark on numerous occasions. 

On Wednesday 20/04/2022 the Complainant emailed the Respondent Assistant Operations Manager wondering if there is anything he needs from the job for social welfare.  On the same day OL from HR forwarded a letter to the Complainant for Social Welfare.  I am satisfied that matters within the remit of HR to address on behalf of the Complainant were actioned immediately in terms of the initial referral to Medmark and the same day response to request for letter for social welfare.  I am of the view it would have been helpful that HR should have answered each one of the emails sent by the Complainant throughout this period albeit I fully acknowledge they did not yet have the answers to his questions but at a minimum even to have acknowledged receipt of each email would have been supportive of the Complainant.   

I note that the Respondent was working away behind the scenes on arranging the driving assessment for the Complainant although I understood from the Complainant at hearing that the driving assessment was “on his back” and that he, the Complainant, was paying for it but that the Respondent was giving a loan of the bus.  However, the driving risk assessment was not supported by Medmark in view of the Complainant’s diagnosis and with reference to NDLS guidelines and the failure to undertake same cannot be attributable to the Respondent. 

I am not satisfied discrimination on the grounds of disability took place.   While I sympathise with the situation in which the Complainant found himself after he disclosed his medical diagnosis to the Respondent, I cannot find that he was discriminated against for the following reasons.   The perceived shortcomings of HR in not responding to all his emails though frustrating and exasperating for the Complainant is not inherently discriminatory.  The perceived delay in the medical process is outside of the control of the Respondent.  While I might take issue with the shortcomings of the HR function including the failure to reply to all the Complainant’s emails I am constricted in my decision to the provisions of the relevant legislation.  

I cannot find it discriminatory that HR were unable to provide the answers to all the Complainant’s questions all the time while the medical process was still underway between 04/03/2022 and 20/05/2022 when the medical report issued from Medmark and during the period of time the outcome of the Complainant’s appeal was pending.  In my view the poor response from HR contributed to the frustration felt by the Complainant and his interactions with HR could and should have been handled more efficiently at the very minimum by acknowledging receipt of his emails even if they could not provide the answers.  

The Complainant availed of the second medical opinion, and he could not wait for the report to issue from Dr Whelan.  The Complainant stated at hearing that he phoned Dr Whelan before the report issued to get the outcome and on foot of that outcome he resigned. 

I note the Respondent fell short of best HR practice in the manner in which the Complainant’s resignation was accepted without demur.  At the very minimum an exit interview should have been undertaken with the Complainant.  Notwithstanding, poor HR practice is not in itself discriminatory on the prohibited ground in an organisation where all employees have the potential to be subject to the same type of service from an HR function. 

I am mindful of the case of Darguzis v. Lough Corrib Engineering Ltd [DEC-E2009-038], a claim concerning discrimination on the grounds of race but equally applicable in any claim of discrimination where the Equality Officer found that for discrimination to be established a complainant must establish “a difference in treatment” and not simply treatment “in a mannerperceived to be less than ideal”.  [emphasis added]

Having carefully considered all the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons without a disability or a different disability, or a hypothetical comparator, would have been treated more favourably than him in relation to the matters he seeks to rely upon in the context of the instant case.  I find that the Complainant has not pointed to facts of such significance that raise an inference of discrimination.    Accordingly, I find the Complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of disability.  

Taking the Complainant’s evidence at its height, I find there is no fact of such significance that could raise an inference of discrimination. 

(2)    Claim of failure to provide reasonable accommodation:

Turning now to what is in essence the central plank of the Complainant’s complaint and that is his claim that the Respondent has failed to provide him with reasonable accommodation.  It is common case the Complainant has been found to be not medically fit to safely drive a public service vehicle by the company occupational health provider, Medmark, and also by Dr Whelan who undertook an independent assessment of the Complainant on appeal.   Dr Whelan advised that the presence of a progressive neurological disorder precludes the Complainant from driving a public service vehicle in line with NDLS guidance concerning Group 2 licensing which includes public service vehicles. 

The Complainant’s role with the Respondent is that of a bus driver.  It is an inescapable fact the Complainant is now precluded from filling that role. 

The Relevant Law:

The nature and extent of an employer’s obligations, including an employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act, 1998. 

Section 16(3) of the Acts provides in relevant part as follows:

16.—

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

Section 16 of the Act was the subject of comprehensive judicial analysis by the Supreme Court in Nano Nagle v. Marie Daly [2019] 30 ELR 221.  Charlton J unequivocally and unambiguously pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired where he held as follows: 

“The requirement to redeploy does not arise under the 1998 Act in this jurisdiction.  Thus such cases as cited above [ i.e., Archibold v. Fife Council [2004] UKHL 32, [2004] I.C.R. 954 and Chief Constable of South Yorkshire Police v. Jelic [2010] I.R.L.R. 744] from the England and Wales jurisdiction would not carry the same imperative here.” 

MacMenamin J in paragraph 89 of his judgment in Nano Nagle v. Daly,after extensive discussion of the obligations of employers arising pursuant to section 16 of the 1998 Act, summarised by stating that section 16(3) of the Act placed a “mandatory primary duty” on an employer to provide reasonable accommodation, unless this would impose a disproportionate burden on an employer and held as follows:

“The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee.  It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job.” 

I am satisfied an irreducible minimum requirement of the Complainant’s job as a bus driver in the Respondent company is that he is declared medically fit to drive a public service vehicle.  The Complainant is categorised as a Group (Class) 2 driver by the Road Safety Authority, and he requires a specific licence which is contingent on his medical fitness to meet the relevant national medical guidelines. 

I am satisfied that no amount of “reasonable accommodation” could get over the fact that the Complainant is unable to perform his role as a bus driver or any part thereof.  There is no accommodation the Respondent could provide or implement or no modification they could make that would allow the Complainant to undertake the job he was engaged by the Respondent to perform. 

For the sake of completeness, the alternative roles discussed at the face-to-face meetings in May/June between the Respondent and the Complainant and his SIPTU representative were roles that also necessitated the requirement that the Complainant drive a bus in the roles he proposed even had there been a vacancy.   The Complainant seemed to fixate on those alternatives namely route training also known as mentoring and the job in facilities respectively to the exclusion of all or any other jobs in the company.  I make this observation on the basis of the Complainant’s assertion that he did not in fact have the App on which all roles in the company are advertised.  

On the basis of the foregoing, I find there was no breach of the duty to provide reasonable accommodation.  The law is set out by the Supreme Court in Nano Nagle v. Daly, and, for the sake of completeness, I am guided by a recent Labour Court determination of November 2022 where Nano Nagle is heavily relied upon by the Court in Health Services Executive v. Ms Marie O’Shea [EDA2227]. 

(3)    Claim of Discriminatory Constructive Dismissal:

The final element of the Complainant’s complaint that I must consider relates to the claim that he was discriminatorily constructively dismissed from his employment.  The Complainant did little to advance or to engage with this element of his complaint at hearing.  Notwithstanding, I have carefully considered the written submissions and the oral evidence adduced at hearing.  There is a significant overlap in the evidence introduced regarding all three elements of this complaint and I am satisfied this is the appropriate backdrop against which I will base my conclusions albeit the claim of failure to provide reasonable accommodation remained at front and centre at hearing.  

Section 2(1) of the Acts defines dismissal as including:

“the termination of a contract of employment an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it would have been reasonable for the employee to do so…”.

The Labour Court comprehensively addressed the issue of constructive dismissal under Employment Equality legislation in the case of An Employer v. A Worker (Mr O) (No 2) [EED410] wherein the Court noted the definition was practically the same as the definition of dismissal contained in the Unfair Dismissals Acts.  The Court held that the tests for constructive dismissal developed under that legislation i.e., the “contract” test and the “reasonableness” test were applicable tests under the Employment Equality legislation. 

The Labour Court held in reference to the “reasonableness” test as follows:

“There is, however, the additional reasonableness test which may be relied upon either as an alternative to the contract test or in combination with that test.  This test asks whether the employer conducts his of her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.  Thus, an employer’s conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving.  Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee resigning there and then.”

When referring to the “contract” test the Labour Court held as follows:

“It is not suggested that the respondent breached any express term in the complainant’s contract of employment.  It is, however, settled law that ever contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

In Berber v. Dunnes Stores[2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

It is well established and a generally accepted proposition that an employee is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v.Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

I note the seminal EAT case Conway v. Ulster Bank Ltd. [UD474/1981] where it was held as follows:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the Appellant did not use it.  It is not possible for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

The question I must decide in the instant case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.  The burden of proof rests with a complainant to set out the facts that show, because of the actions of his employer, he had no alternative but to resign. 

I am satisfied the Respondent efforts to make a full inquiry into the Complainant’s medical condition, in line with their own procedures and in accordance with the recommendations of the Labour Court in A Health and Fitness Club v. A Worker [EED 037] indicates the Respondent sought to ensure full possession of all the relevant facts surrounding the Complainant’s medical condition.  

I am satisfied that there was not an inordinate delay in the length of time which it took the Respondent to make arrangements to have the Complainant assessed by its Occupational Health Physician in circumstances where an appointment had been arranged for him within a matter of days.  The Respondent confirmed this appointment with him by email on 18/02/2022 having been notified by the Complainant of his medical diagnosis on 14/02/2022.  The Complainant was unable to attend the appointment on 18/02/2022 and an alternative appointment was arranged for him on 04/03/2022.   I am satisfied there are no circumstances in which the ensuing perceived delay in the medical process can be attributed to the Respondent or to any unreasonableness of behaviour on the part of the Respondent.

I note the Complainant did accept when it was put to him by the Respondent representative at hearing it was fair to say that the Company was engaging with him whilst awaiting the outcome of the medical assessment.  I note the Complainant was fully represented by a trade union representative during these meetings.  I note the Complainant did not raise a grievance at any stage prior to resigning despite the allegation submitted that the Respondent treatment of him was shocking during this time.  I take cognisance of the Labour Court in the case of Mr O v. An Employer (no2) [2005] 16 ELR 132 where it was held as follows:

“The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” [emphasis added]

I note there was further engagement while the outcome of the appeal to the independent medical professional was pending at a meeting at which the Complainant was fully represented by his trade union.  The Complainant resigned before the Respondent was notified of the outcome of the medical appeal.  The Complainant could not wait for the report to issue through the proper channels and he phoned to hear the outcome and then resigned.  It is regrettable that the Complainant could not wait until such time as the definitive report issued via Medmark to the Respondent arising from his appeal so as to engage further with the Respondent. 

Having regard to the totality of the evidence adduced, I find the Complainant has failed to discharge the burden of proof to support his claim that he was discriminatorily constructively dismissed for the following reasons.

The “contract” test:

I find that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant, or for that matter, a minor breach of his contract.  I note the Respondent continued to engage with the Complainant and his trade union representative whilst awaiting the outcome of the medical process initially and subsequently whilst awaiting the definitive outcome arising from the independent appeal/second medical opinion. 

The “reasonableness” test:

I can find no evidence of any action on the part of the Respondent that the Complainant can identify that was so unfair and unreasonable that he had to resign.  Having carefully reviewed all the facts as presented to me I find the Complainant has failed to satisfy the burden of proof that the Respondent engaged in conduct that made it reasonable for the Complainant to terminate his contract of employment.  Reasonableness goes both ways and it is well-established an employee is required to act reasonably by using the employer’s grievance procedure to try and resolve the issues that are threatening to lead to resignation before resigning. 

In the circumstances, I find the Complainant resigned from his employment of his own volition and was not constructively dismissed within section 2 of the Acts.  Accordingly, I find that his complaint of discriminatory constructive dismissal must fail. 

CA-00052315-001

(1)    Claim of discrimination on grounds of disability:

For the reasons set out above I find the Complainant failed to establish a prima facie case of discrimination, namely that he was discriminated against on the grounds of his disability. 

(2)     Claim of failure to provide reasonable accommodation:

For the reasons set out above I decide there is no breach of duty to provide reasonable accommodation. 

(3)    Claim of Discriminatory Constructive Dismissal:

For the reasons set out above I find the Complainant was not constructively dismissed on grounds of his disability. 

Accordingly, I decide CA-00052315-001 is not well-founded.  

Reasonable accommodation; discriminatory constructive dismissal;