Case Number: DEC-E2012-043- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-043- Full Case Report
• Date: 19 April 2012
• Court: Equality Tribunal

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2012 - 043

PARTIES

Mr Tom Grimes (represented by Ms Mary Paula Guinness B.L., instructed by O'Mara Geraghty McCourt Solicitors)

and

Iarnrod Eireann (represented by Ms Cathy McGuire B.L., instructed by the respondent's in-house legal service)

File References: EE/2009/251
Date of Issue: 19th April 2012

Table of Contents

Claim ....................................................................................3
Summary of the Complainant's Written Submission ............3
Summary of the Respondent's Written Submission...............5
Conclusions of the Equality Officer .....................................6
Decision ..............................................................................13

1. Claim

1.1. The case concerns a claim by Mr Tom Grimes that Iarnrod Eireann discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2011, in terms of conditions of employment, failure to provide reasonable accommodation, and other discriminatory conduct.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 20 April 2009. A submission was received from the complainant on 6 January 2010. A submission was received from the respondent on 8 February 2010. On 19 October 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 February 2012.

2. Summary of the Complainant's Written Submission

2.1. The complainant works for the respondent as a train driver. He submits that the respondent failed to provide him with reasonable accommodation following a disabling accident at work. The complainant feels further discriminated by certain remarks and by a requirement to sign on for work at a particular train station, something he alleges was not required of other drivers. He also alleges that failure to activate the disabled driver's scheme when he was out of work for more than 26 weeks amount to discrimination on the ground of his disability.

2.2. The complainant's submission refers to a complex series of events, both medical, and in terms of his communications with the respondent. For greater clarity, these are set out as a timeline in the table below:

17/9/2007 Complainant suffers accident at work and sustains a knee injury. His GP prescribes medication and physiotherapy.
19/10/2007 The complainant's injury does not improve and his GP refers him to an orthopaedic surgeon.
6/11/2007 Complainant attends orthopaedic surgeon
9/11/2007 Complainant undergoes MRI scan
22/11/2007 & 29/11/2007 Physiotherapy sessions
4/12/2007 Complainant attends orthopaedic surgeon and discusses use of the "dead man's pedal", which it is felt aggravates his knee problems.
17/12/2007 Complainant undergoes further medical procedures.
8/1/2008 Complainant attends orthopaedic surgeon. Surgeon recommends changes in lifestyle, including change in type of trains which the complainant drives.
8/3/2008 Complainant attends the respondent's medical adviser, Dr L.
20/3/2008 Second visit to Dr. L. Complainant is certified fit to return to work.
End March 2008 Complainant returns to work, but is certified unfit for work after two days by his GP.
8/5/2008 & 29/5/2008 Complainant attends Dr. L. "Dead man's pedal" discussed.
9/6/2008 Complainant returns to work. He suffers from pain and discomfort.
3/7/2008 Letter from complainant's GP, recommending a change of duties due to problems with the use of the "dead man's pedal".
20/8/2008 Complainant attends Dr. L. Change of duties to DART discussed. Problems with "dead man's pedal" and DART train technology discussed in detail.
26/11/2008 Dr. L passes complainant fit to drive all units.
8/12/2008 Complainant's solicitors write to respondent, requesting transfer to DART as reasonable accommodation.
9/12/2008 Written transfer request by complainant directed to his manager.
13/1/2009 Follow up letter by complainant to supervisor.
15/1/2009 Response from supervisor confirming transfer request
2/2/2009 Complainant certified as unfit to work by his GP
11/2/2009 Follow-up letter from solicitors to supervisor re: transfer
19/2/2009 2nd follow-up letter from solicitors to supervisor.
11/3/2009 3rd follow-up letter from solicitors to supervisor
20/4/2009 Complaint lodged with Equality Tribunal
14/8/2009 Meeting between complainant, complainant's union representative and respondent head of HR - employer agreed to request a move to DART.
17/8/2009 Complainant attends GP over concerns of fitness to return to work.
18/8/2009 Complainant attends Dr. L, who finds him unfit to return to work.
3/9/2009 Complainant attends respondent's CMO.
11/9/2009 2nd meeting between head of HR, assistant head of HR, complainant and union representative. Agreement that complainant would transfer to DART and be trained accordingly.
21/9/2009 Dr L. passes complainant as fit to work on limited duties until he can start his DART training. The complainant returns to work.

3. Summary of the Respondent's Written Submission

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the complainant's first formal request to drive DART trains was only received in December 2008. The respondent further notes that due to chronic pain, the complainant would not have been a position to start training as a DART driver before September 2009.

3.2. The respondent further disputes that the complainant was discriminated against when it was requested of him, while he was training as a DART driver, to sign on at Connolly Station. It points out that in the case of one named driver, the respondent was satisfied that the driver was adequately supervised in his signing-on, and that the signing-on of the other named driver was indeed irregular and stopped five days later, when it had come to the attention of management.

3.3. With regard to entering the complainant into the disabled driver's scheme, the respondent states that due to confusion about the complainant's medical condition and likely return to work. It states that when this was clarified, the respondent took the necessary steps immediately and the complainant received a significant sum of money from the respondent to ease any financial burden.

4. Conclusions of the Equality Officer

4.1. The issues for decision in this case are whether the complainant was refused reasonable accommodation for his disability within the meaning of the Acts and whether he was otherwise discriminated against on the ground of the same disability.

4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

4.3. Since there is no dispute that the accommodation sought pursuant to S. 16 of the Acts - the transfer to DART driving duties - was eventually provided, the remaining net issue remains whether the respondent was pro-active enough in working with the complainant in implementing it.

4.4. This follows the Labour Court decision in A...