The complainant, Mr. Flanagan, worked for Irish rail from 2004 until he fell ill in January 2015.  In the engagements that followed the complainant disclosed that he had been suffering from epilepsy since 1997 and it was being managed by his GP.  The respondent’s medical advisors concluded that the complainant could not be cleared for safety critical work including the role for which he had been employed. The respondent had a policy of seeking to accommodate staff who develop a disability. This was applied but because of his unsuitability for safety critical work, or using power tools alone, no other role was identified for him and he retired on ill health.

In the WRC the Adjudication Officer upheld the complainant’s complaint finding that “the evidence suggests that the Respondent has not fully complied with the responsibilities placed on it by the Equality legislation to accommodate the complainant in this case”.  He ordered that the complainant be re-engaged and in addition awarded €15,000 for the effects of the discrimination. This was appealed by the respondent to the Labour Court which issued its decision on 6 June 2017, looking at the case under the two headings below.

Reasonable Accommodation

The Court found the complainant withheld information about his medical conditions in 2004 when he first applied and again in 2009 and accepted the respondent’s medical evidence that had this been known the complainant would not have been cleared for employment in the relevant role in the first place.  It further accepted that no accommodation could render the complainant capable of undertaking the work for which he had been employed or any other safety critical role.  On that basis the Court found that the respondent was entitled to avail of the defence in 16(1) of the Acts.

Given that the complainant was employed as a Railway Crossing Keeper, and one might expect that the core tasks related to exactly that with him possibly working alone, even a consideration of a rearrangement of tasks in accordance with Nano Nagle  would not assist the complainant.

Direct Discrimination on the Disability Ground

The second aspect of the complainant’s case was that he was treated less favourably as a result of his disability and that two others were treated more favourably than he.

The complainant asserted two other colleagues had been accommodated under the respondent’s policy but only one was identified and the complainant’s own witness indicated that the complainant would not have been suitable for this safety critical position.   As he failed to adduce any evidence in support of his contention the Court found there was no merit in it.

The Court found the respondent had not discriminated against the complainant on any of the claimed grounds and the decision of the Adjudication Officer was set aside.

Interestingly, the Court found that the assertion that the policy, which undertook to attempt to accommodate employees, did not convey any actual entitlement to such accommodation and to assert this was a misconceived understanding of the requirements.

Appropriate Comparator

It should be remembered that the appropriate comparators on the disability ground are those with no disability or those with a different disability. But that is not the end of the matter because in this case the complainant had an additional difficulty which was not being suitable for safety critical work.  This was a consequence of the complainant’s disability and is relevant to the circumstances in which he found himself.  Comparisons must be made to comparators in similar circumstances.  So, who is the appropriate comparator in this case?

The group of employees who have no disability are valid comparators but part of the rebuttal would be that they can do a safety critical job while the complainant cannot.  Those who have a different disability are also valid comparators but those whose disability does not prevent them from doing the safety critical tasks are similarly treated in respect of the potential for rebuttal.

So, considering those who are capable of safety critical work becomes unnecessary because the circumstances are different and they are capable of undertaking roles that could not have been offered to the complainant.  This was in fact the problematic issue when one of the comparators presented by the complainant was considered where the Court found:

Indeed the only evidence he offered in this regard contradicted his contention that another person with a different disability was favoured over him for one such role. The evidence of his own witness was that he was not qualified to undertake that role due to the safety critical nature of some of the duties involved.

Therefore, the complainant would have had to indicate another person in similar circumstances who had a different disability, and who had been accommodated in a non-safety critical role.  Only in those circumstances could he argue that he had been less favourably treated because of the disability he suffers from. This he was unable to do.