William Morris v Iarnrod Eireann Irish Rail ADJ-00027184 is an interesting recent decision from the Workplace Relations Commission (“WRC”) which examined whether an employer’s decision not to hire someone with a disability was justified on the basis of its medical policy in the context of a safety critical role.
Facts: The Complainant applied for two roles with the Respondent railway organisation. These roles were locomotive driver and Revenue Protection Officer (“RPO”). The Complainant was unsuccessful in both applications and lodged two complaints with the WRC under the Employment Equality Acts 1998-2015 (the “Acts”).
The Complainant provided a detailed submission to the WRC giving background to the claims. He submitted that he was diagnosed with depression and Generalised Anxiety Disorder in 2007. He did not have any severe symptoms such as anxiety attacks, but his Consultant Psychiatrist recommended that he remain on medication. In 2017 he was discharged from his Consultant into the care of his GP. In December 2019 he applied for the locomotive driver position with the Respondent and successfully completed all the tests for the position, including the driver safety test. He was invited to an interview on 14th February 2020. He was required to undergo a medical examination with the Respondent’s medical advisers, and he disclosed that he was on medication for anxiety.
The Complainant gave evidence that on 3rd February 2020 he was informed by Dr Loftus, a specialist in occupational medicine, that the Respondent did not “hire people with your type of history”. Dr Loftus, in evidence at the hearing, denied having made this statement. The Complainant submitted that no assessment was carried out by Dr Loftus regarding his anxiety. On 6th February a nurse informed the Complainant that he had not passed the medical. He was then informed on 7th February by the Respondent that he would not be required to attend for interview because “the medical department have not declared [the Complainant] fit for recruitment.” The Complainant requested a reason as to why he had been deemed medically unfit for the role. He was informed by the CMO, Dr Whelan (who had not assessed the Complainant) that it was because of “the tendency to generalised anxiety. With such a condition you would not be considered suitable for safety critical roles…This would include Road Passenger driving role.”
The Complainant’s GP provided a letter dated 13th February 2020 stating that his anxiety was quite stable for many years while taking medication. The Respondent replied via email that “it is the nature of the condition which is the important factor in assessment of fitness for Locomotive Driving. Tolerance of the significant psychological pressures of public safety critical work and shift work is a major determinant of fitness for such a position”.
The Complainant submitted that the Respondent did not carry out a risk assessment or an assessment of the psychological pressures of safety critical work, but rather assumed that he could not tolerate such pressures because of his condition. For this reason, he argued that the Respondent had applied an “absolute bar” on the employment of individuals suffering from anxiety as train drivers. His position was that the Respondent’s “blanket” denial of access to a locomotive driver position based on his condition and/or medication, was disproportionate to the aim of ensuring the fitness of its drivers for the safety critical aspects of the role. He also submitted that the Respondent failed to consider reasonable accommodation.
Conversely, the Respondent denied that they had made a “blanket decision”, but argued instead that their decision was related to the Complainant’s circumstances, having regard to the fact that the Complainant had an enduring mental health condition, Generalised Anxiety Disorder, being controlled by medication. According to the Respondent, the decision regarding the Complainant’s fitness was not made by Dr Loftus. A decision was reserved pending receipt of the Complainant’s medical records and a decision was ultimately made by the Respondent’s CMO, Dr Whelan, who reviewed and considered the Complainant’s medical records including a report from the Complainant’s Consultant Psychiatrist. The Respondent submitted that it was not possible to modify a locomotive driving role to accommodate the Complainant’s condition. Their position was that the inherent nature of the role is stressful and potentially dangerous and entails responsibility for the lives of hundreds of people. The decision was, according to the Respondent, justified in light of s.112 of the Railway Safety Act, 2005 and did not breach the Acts.
The second claim related to the Complainant’s application for the RPO role. The Complainant interviewed for this position on 16th January 2020 and thought it had gone well. He was later informed that he was not successful for the position and believed that the Respondent relied on his medical condition (disclosed in his application for the locomotive driver position) in its decision. He submitted that this was unjustified discrimination on the ground of disability and/or victimisation, prohibited by the Acts. The Respondent argued that the interview panel decided on the day of the interview that the Complainant would not be selected for the RPO role, and the members of the panel had not been aware of his medical status.
Decision: The Adjudicator was satisfied that the Complainant had established a prima facie case of discrimination. However, the Adjudicator found that the Respondent had successfully demonstrated that there was in fact no discrimination in either case and the Adjudicator did not uphold either complaint.
RPO Role
In relation to the RPO role, the Adjudicator reviewed the documentation provided by the Respondent and was satisfied that the decision not to progress with the Complainant’s application was made on the day of the interview and was based on factors not related to the Complainant’s medical status. He found that there was no discrimination or victimisation by the Respondent in respect of this role.
Locomotive Driver Role
Regarding the locomotive driver role, the Adjudicator referred to section 37 of the Acts entitled “Exclusion of discrimination on particular grounds in certain employments”, noting that this section permits certain treatment that would otherwise be discriminatory treatment. Section 37(2) provides as follows:
“For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out –
- the characteristic constitutes a genuine and determining occupational requirement, and
- the objective is legitimate and the requirement proportionate.”
The Adjudicator referred to Cunningham v IPS as follows:
“[I]t may well be that a particular disability will in fact render a person incapable of performing the necessary functions in a particular emergency service. Everything will depend on the circumstances of the case”.
The Adjudicator noted that the crucial question in this case was whether the Respondent was justified in not progressing the Complainant’s application for the position in light of the specific characteristics and requirements of the role and in accordance with section 37(2).
The Adjudicator referred to section 112 of The Railway Safety Act 2005. Section 112(2) provides as follows:
“Railway organisations shall ensure that safety critical workers undergo assessment by a medical practitioner of their fitness to perform safety critical tasks.”
Section 112(3) provides, inter alia, that where a railway organisation has been notified by a medical practitioner that an individual is, in their opinion, unfit to perform a safety critical task, the railway organisation shall not permit the individual to perform a safety critical task.
The Adjudicator was satisfied that the decision had been made by Dr Whelan who had taken into consideration the medical evidence provided to him. He found that there was insufficient evidence to support the Complainant’s claim that a “blanket” ban was applied on individuals with General Anxiety Disorder. From the evidence, the Adjudicator found that the decision not to progress the Complainant to interview for the locomotive driver role fell within the scope of section 37(2) and did not constitute discrimination. The Adjudicator accepted that it would not be reasonable or proportionate to provide an accommodation for the role. He commented that if the Complainant had been an employee working as a locomotive driver who developed a disability, there would have been a greater responsibility on the Respondent to provide reasonable accommodation.
Takeaway for Employers: Employers should be aware that discrimination on any of the nine discriminatory grounds is prohibited by the Acts. The nine grounds relate to: gender, civil status, family status, sexual orientation, religious belief, age, disability, race/colour/nationality/ethnic or national origins or membership of the Traveller community. The Acts apply not only to employees, but also to job applicants.
However, the decision will be welcome to employers who have what are regarded as safety critical roles, confirming as it does that an employer may decide not to employ an individual in such a role where he/she suffers from a disability that renders him or her unfit to perform a safety critical role. It will be important in such cases for an employer to be in a position to demonstrate that they do not operate a “blanket ban”, but that they have considered the relevant, available, medical evidence and an individual’s particular circumstances in reaching a decision.
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
28th October 2022