The Complainant, Karl Griffin, brought a complaint under the Employment Equality Act against the Respondent, Bus Átha Cliath, alleging discrimination on the grounds of disability.  The Complainant alleged that he was discriminated against on the grounds of his disabilities, including sleep apnoea and anxiety when he was denied reasonable accommodation for his conditions following a removal from his day shift pattern when the Company lost the state contract to run the number 17A bus route on Dublin’s northside in which the Complainant was employed.

The Complainant had commenced employment with the Respondent in 2007. The Complainant was on sick leave between 2011 and 2013 and when he returned he was then diagnosed with sleep apnoea, which his employer accepted required a "regular sleep pattern" to control, the Workplace Relations Commission was told.  It was common case that Dublin Bus agreed to put the Complainant on a daytime shift and that he was able to regularise his sleep and bring his condition under control. There was no dispute between the parties that the arrangement continued for some five years

The Company’s position was that when it lost the 17A contract, the drivers assigned to the route had to be reassigned to other routes running from the Harristown depot. The Complainant said the Respondent’s depot manager in the Harristown depot, gave him a "grilling" in 2018, looking for "documentary evidence of the complainant’s condition".  In evidence, the depot Manager said there were a "great number" of staff to redistribute "in a highly unionised workforce where the pecking order between junior drivers and seniors is very important".  The depot manager said he told Mr Griffin in April 2019 he wouldn't be able to assign him to a permanent day shift but would "endeavour to ensure" his hours would be daytime hours – terming it "a slight modification" to the schedule.

The Respondent’s Dublin Bus on-site occupational doctor had deemed him "fit for the duties of his grade" in a memo to management a year earlier and gave evidence that she understood his condition to be "mild and under control".   There was some question over how long the reasonable accommodation or facilitation as it had been referred to was intended to last once the Complainant's condition of sleep Apnoea was under control.

The Adjudication Officer wrote that she had no doubt that the Complainant believed any "dramatic change" to his shift pattern which might disrupt his sleep would have a negative effect on his condition and result in "exhaustion and incapacity".  The Adjudication Officer was satisfied on the evidence that the condition complained of, that of sleep Apnoea, was a “disability” within the meaning of the Acts and that the “facilitation” offered by the Respondent’s was in fact a reasonable accommodation.  However, the Adjudication Officer noted that she did not think it was reasonable to expect the Respondent to keep the reasonable accommodation for the driver in place forever.

The Adjudication Officer noted that the Complainant must have known that his daytime shift pattern was unique to him, and that this was ruffling feathers in this workplace. As his manager came under pressure with the loss of runs etc., it was not unreasonable for his manager to seek more flexibility from the Complainant. The Complainant’s blanket refusal was not a reasonable response.

The Adjudication Officer was note persuaded that the Complainant had made out a prima facie case of discrimination, and dismissed his complaint.

Guidance for Employers

This case demonstrates a good example of where an Employer has discharged their duties in allowing for reasonable accommodation to be made for their Employee’s requirements. Dublin Bus had endeavoured to put the Complainant’s shift on daytime hours. This would of course have caused great difficulty for the company and would have been difficult to maintain in the long term. It is important that an employee tries to engage in a new accommodation arrangement offered, in this particular case, the Adjudication Officer criticised the Complainant for “ruffling feathers” in the workplace and for refusing to engage with his Manager.
https://www.workplacerelations.ie/en/cases/2022/adj-00029733.html