Complainant

Respondent

Parties

Dede  Kroni

Bus Eireann

Representatives

John Sheridan Bus Eireann

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-00061345-001

01/02/2024

The Complainant is a bus driver who has worked for the Respondent for 16 years.

In 2022 the Complainant was diagnosed with Chronic Lymphocytic Leukaemia.

His doctors concluded that treatment was not necessary at that point as the disease develops slowly. However they noted that fatigue was a symptom of the disease and recommended that the Complainant move off shift work.

The Respondent had this position confirmed by their Chief Medical Officer and then moved the Complainant to a bespoke shift which involved him working 7am -4pm.

The Respondent discontinued this arrangement in October 2023. The Complainant has managed to continue working 7am -4pm since then but only by constantly seeking swaps and assistance from his colleagues. He has been signed off on sick leave when he is unable to arrange these swaps.

He referred this complaint to the WRC, with the assistance of his son, seeking a return to the 7am-4pm shift.

The Complainant attended the hearing and gave evidence under oath. He made comprehensive submissions before the hearing.

The Respondent attended the hearing represented by Mr Sheridan who made oral and written submissions on their behalf. Ms Lynn Cullen, the People Operations Manager, gave evidence under affirmation.

The Respondent submits that the 7am-4pm shift was a temporary arrangement which caused significant challenges for the Company. It was maintained until it was no longer possible and the Complainant was given notice of its termination.

Alternative work was offered to the Complainant on several occasions which would have addressed the medical request that he work ‘regular working hours’ and a ‘non rotating shift pattern’. All these offers were declined.

The Respondent has done everything reasonable to accommodate.

The Law

It is clear that the Complainant is affected by a medical condition which constitutes a disability under the Employment Equality Acts (“EEA”), and that enjoys the protections of the EEA.

The Complainant has brought a Complaint under the Employment Equality Act alleging discrimination due to disability and that the Respondent failed to provide him with reasonable accommodation.

Discrimination

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of the various grounds covered in the acts, in this case disability is the relevant ground.

The most relevant parts of Sections 6 and 8 are detailed below.

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

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

….

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

……

(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”),

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee…..

Reasonable Accommodation

Section 16 outlines employers’ obligations to provide reasonable accommodation to employees with disabilities. The most relevant parts of Section 16 are outlined below:

16. (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual

 (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

 (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that Employment Equality Act [1998.] 1998 PT. II S. 14A [No. 21.] 28 position, having regard to the conditions under which those duties are, or may be required to be, performed.

…….

(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.

 (4) In subsection (3) ‘appropriate measures’, in relation to a person with a disability— (a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned, (b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.

Burden of Proof and Prima Facia Case

Section 85A of the Employment Equality Acts 1998 to 2015 provides that: 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.

As such the burden of proof in this matter is on the Complainant. If the Complainant’s case meets the threshold set out above then the burden of proof is reversed and it is on the Respondent to rebut the above presumption of discrimination.

Section 79 of the Employment Equality acts is clear that I must examine this matter by way of an investigation.

On review of the Complainant's complaint form, submission and the evidence available l can summarise his case in following terms. He is protected from discrimination on the basis of the disability ground. He was discriminated because the reasonable accommodations provided to him by the Respondent were removed while he was still reliant on them. This has caused him significant stress and on a number of occasions he was not able to attend work due to his employer’s failure to provide reasonable accommodation under Section 16 of the acts. His comparator for the purposes of Section 6 is a hypothetical comparator who does not have a disability and who was able to attend work as normal.

Findings

The Complainant was diagnosed with Chronic Lymphocytic Leukaemia (CLL) over the course of the Summer of 2022. 

St James’s Hospital wrote the Respondent on the 6th of September 2022 referring to the diagnosis and noting that fatigue was associated with the condition. The hospital stated that they “support Mr Kroni’s wishes for regular working hours”.

The Respondent’s CMO met with the Complainant shortly after and on the 12th of September issued a memo stating “we would recommend management to facilitate him with a regular (non-rotating) shift pattern pending review in the Medical Department”.

Acting on the above medical advice the Respondent then moved the Complainant to a regular 7am to 4pm shift but continued to work his normal five over seven shift pattern. This meant that he continued to have two Saturdays and three Sundays off over a five week period, inclusive of one three day weekend.  

The Respondent does not operate a 7am to 4pm shift. Instead most bus drivers work a series of shift patterns which rotate over time. The Complainant was facilitated in working these hours by covering leave and absences.

As well as full time bus drivers, the Respondent employs a cohort of spare divers, who provide cover on an as needed basis. The Complainant’s roster resulted in a number of complaints from these drivers who were missing out on morning shifts that he was getting. Morning shifts are considered more desirable and depending on the practices in place at the time, some spare drivers believed that they were entitled to shifts the complaint had. The Respondent engaged with the Complainant to try and find a more suitable alternative role which would facilitate his medical needs but the Complainant was not satisfied with the roles offered.  

In October 2023 the Respondent came to a national agreement with unions representing the spare drivers. I do not have sight of the agreement and no clear idea exactly how it tied the Respondent’s hands in regard to the Complainant. However, when cover was needed for the 7am -4pm shift instead of that shift going to the Complainant it went to a spare driver. It appears that the spare driver became entitled to the shift by virtue of the agreement.

On the basis of this agreement the Respondent then removed the Complainant from the 7am to 4pm shift and return him to a normal shift which would involve much more varied hours. The actions of the Respondent were in no way grounded in medical advice but related entirely to the agreement with the spare drivers. On the 19th of October the CMO issued a further memo which noted the benefit of the new shift on the Complainant and determined if the Respondent were unable to maintain the arrangement he might have to go on sick leave.

The Respondent tried to arrange a grace period of about ten weeks were the shift continued but they were only partially successful. Their evidence was that spare drivers could watch the rosters like a “hawk” and were extremely quick to point out any morning shift that didn’t go to them. The Complainant regularly had to seek swaps and support from his colleagues in order to maintain the 7am to 4pm shift. When this was not possible he went on sick leave. Since January 2024 he is constantly trying to arrange his own swaps and has mostly been able to arrange continuing to work the 7am-4pm shift. The number of sick days he has had to take has increased significantly in 2024. He has found managing this extremely stressful. He now has to chase colleagues and inspectors on a weekly basis in order to maintain the 7am to 4pm roster.

The Respondent does not believe they can formalise this arrangement due to industrial relations constraints. Ms Cullen’s evidence was that she cannot even ask the Complainant’s colleagues to swap shifts as they are entitled to those shifts and she has to treat everyone fairly.

I believe that Respondent misunderstands their duties under the EEA. Their obligations in law are not optional and are not secondary to their own internal industrial relations climate.  The accommodations keeping the Complainant in work appear to have been discontinued for no other reason that the spare drivers were prioritised over him due to their collective agreement. He has been left to try and make the arrangements himself by asking colleagues for help.

I do not understand how the shifts that the Complainant covers, as a full time driver in receipt of medically recommended reasonable accommodations, can be considered available to spare drivers at all. It would seem to me that the shifts are not available as the Complainant is there to work them.

The Respondent at various times attempted to refer to the medical reports in isolation and suggest that all they were required to offer the Complainant with  “regular working hours.” They then point to a number of alternative roles they allege that they referred the Complainant to which provided regular working hours. These included a night shift working as a general operative, a regular split shift over 12 hours and part-time weekend working. They also say they offered the Complainant part-time weekend working topped up by mid week shifts but these mid weeks shifts would not involve regular working hours.

The Respondent argues that they satisfied their obligations to the Complainant by way of the above offers. I do not accept this. After they had received the two different medical reports in September 2022 both parties clearly agreed that the Complainant needed the 7am-4pm shift to remain working full time. They cannot now suggest that the Complainant never actually required this shift and that any regular working hours would do. They were of course entitled to get updated medical reports and seek advice as to whether the Complainant could have been accommodated by way of one or more of the alternative roles but they chose not to.  

The removal of the Complainant from the 7am-5pm shift from October 2023 was prohibited under the EAA.

Redress  

Section 82 subsection 1 of the Employment Equality Acts outline the redress which may be ordered by a WRC Adjudicator. They include:

(e) an order that a person or persons specified in the order take a course of action which is so specified.

I would normally seek to avoid interfering with the internal workings of a company by issuing proscriptive orders. However, in this case the Complainant is not seeking compensation but instead requests that he be given reasonable accommodation so that he can continue working full time. Both parties agree that there are hours available for the Complainant to work 7am-4pm. The Respondent feels bound not to take a proactive role in rostering these hours because of a collective agreement. In the circumstances I believe I should direct them to prioritise the Complainant’s legal right to reasonable accommodation over that of their voluntary agreement with the union.

I find the complaint well founded. I direct the Respondent to provide the Complainant with reasonable accommodation by rostering him 7am-4pm, as they did before October 2023. This roster should remain in place unless it is altered by agreement between the parties or an occupational health consultant deems it unnecessary.