A bus driver has lost a discrimination claim over Dublin Bus’s move to end an arrangement that saw him working day shifts only to accommodate his sleep apnoea – upsetting a strict “pecking order” among its drivers.
Karl Griffin brought a complaint under the Employment Equality Act against Bus Átha Cliath alleging discrimination on the grounds of disability.
He claimed he was denied reasonable accommodation for his conditions, which affected his sleep, when he was taken off day shifts after Dublin Bus lost the state contract to run the number 17A bus route on Dublin’s northside.
Mr Griffin 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.
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It was common case that Dublin Bus agreed to put Mr Griffin on a daytime shift and that Mr Griffin was able to regularise his sleep and bring his condition under control.
Adjudicating officer Penelope McGrath noted that the Dublin Bus doctor recommended the arrangement but that there was a “question mark over how long such a facilitation was expected to last” once the condition was under control.
There was no dispute between the parties that the arrangement continued for some five years.
As a result, Mr Griffin was working a regular daytime shift on the 17A bus, a pattern which would normally be assigned to a senior driver, the tribunal was told.
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.
Mr Griffin said the new depot manager at Harristown, identified only as GK in the decision, gave him a “grilling” in 2018, looking for “documentary evidence of the complainant’s condition”.
In evidence, GK said there were a “great number” of staff to redistribute “in a highly unionised workforce where the pecking order between spares [junior drivers] and seniors is very important”.
Senior drivers are “proprietorial about … the shifts and runs they are entitled to” under the company-union agreement, the hearing was told.
In her decision, the adjudicator Ms McGrath found that the depot manager “genuinely faced” the problem of dealing with potential questions over the special accommodation for the complainant from senior drivers “who believe such special accommodation is earned by length of service”.
Ms McGrath wrote that she had no doubt that Mr Griffin 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”. He had submitted a note from a HSE consultant describing his condition as “severe” in February 2019, the tribunal heard.
However, the 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 made no reference to his condition as she understood it to be “mild and under control”.
“For him it was a safety issue and he did not want to cause an accident while driving,” she wrote.
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 adjudicator noted that this was in conflict with Mr Griffin’s account of the meeting, and that the complainant went out on stress-related sick leave soon afterwards.
In her evidence, the Dublin Bus doctor denied the complainant’s account of an appointment in June 2019, in which he said she “stood up and leaned over him and accused him of it all being in his head”.
The doctor shouted at him and said she “resented being bullied into having to give him an accommodation”, Mr Griffin claimed.
According to the doctor’s evidence, Mr Griffin refused her suggestion that he come back to the workplace in January 2020 to take coffee with colleagues.
Mr Griffin told her making a return was creating a “state of panic” for him that he was now “repulsed” by the thought of driving, the doctor added.
Ultimately, she formed the view that Mr Griffin could never go back to work and he was retired on medical grounds in August 2020.
Ms McGrath wrote that she did not think it was reasonable to expect Dublin Bus to keep the reasonable accommodation for the driver in place forever.
The complainant “must have known that his daytime shift pattern was unique to him, and that this was ruffling feathers in this workplace”, she wrote, adding that his blanket refusal accommodate his manager was “unreasonable”.
Ms McGrath found the complainant had failed to make out a prima facie case of discrimination, and dismissed his complaint.