Courts

Garda detective fails in discrimination action at Workplace Relations Commission

Officer forbidden from riding motorbikes to safeguard hearing despite being allowed to fire weapons

The detective, who had suffered chronic infections in his left ear as a child and had surgery as a consequence, had made this clear to the force when he joined up. Photograph: The Irish Times

Stephen Bourke
Fri Dec 1 2023 - 17:49

A Garda detective with an ear condition who complained of discrimination because he was forbidden from riding motorbikes to protect his hearing — despite still being allowed to discharge weapons — has failed in an equality claim.

In a complaint against An Garda Siochána under the Employment Equality Act 1998, the detective, who was granted anonymity by the Workplace Relations Commission, alleged he had been denied access to part of his job and the opportunity to develop additional skills because of his disability.

The detective, who had suffered chronic infections in his left ear as a child and had a surgery to remove an abnormal skin growth from his mastoid cavity as a teenager, had made this clear to the force when he joined up in, he said.

He and later had a “significant inner ear surgery” and was later found to have “moderately severe conductive hearing loss” across all frequencies in the year he was made a detective, the tribunal heard.

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The detective’s representative, HR consultant James McEvoy of Work Matters Ireland, said that before the second surgery, the detective had gone on a motorcycle course, but had since been “refused access to the use of a motorcycle to successfully carry out the duties of his role”.

However, the tribunal heard the detective had been repeatedly passed fit for firearms duties after Garda management concluded there would only be an “episodic” and “short-term” exposure to noise in firearms duties.

An assistant chief medical officer with An Garda Siochána said the detective’s left ear showed that his level of hearing loss was “stable” and that motorbike noise “did not present a significant risk of exacerbating the pre-existing hearing in that ear”.

He said he had some concerns about the risk of the detective wearing earplugs, the standard hearing protection for Garda motorcyclists, given that the detective’s left ear was “already prone to accumulations of fluid”.

However, the assistant chief medical officer (CMO) said his main concern was the risk of hearing loss in the “normal” right ear.

“Any hearing loss to that ear would be more serious in the case of a person who had pre-existing damage to the left ear,” the witness said.

He added that special precautions had been recommended for the detective during firearms training, including doubling up on ear protection and standing to the right-hand side of the gun range so that his good ear would face away from the shooting.

He added that firearms training was predictable and could be “regulated and controlled” — but that he had no way of managing or monitoring the use of motorbikes in the detective’s unit, even though he said they were only used infrequently.

The medical officer said that in his professional opinion as an occupational health physician, “the risk to the complainant was too great”.

Mr McEvoy argued there was no evidence that his client was either at greater risk of hearing loss because of exposure to the sound of a motorcycle, or that his ability to ride a motorcycle was impaired because of his condition.

It was submitted by State counsel Brian Conroy that the complainant’s specialist had deferred to the assistant CMO in the occupational health area.

Mr McEvoy said it was a “discriminatory decision” as the force had failed to “properly and correctly” assess the detective’s condition and the noise of a motorcycle or correctly interpret communications from the medical consultant treating him.

“The denial by the respondent to allow the complainant access to the use of motorcycles in the line of duty is an act of discrimination. This is a cause of stress and embarrassment to him, particularly in the company of his colleagues who are aware of his qualifications,” Mr McEvoy said.

In his decision, adjudicator Michael MacNamee wrote that the assistant CMO had “consulted fully” with the detective’s specialist doctor and that there was “no evidence that any information provided by the latter was disregarded”.

Mr MacNamee found the force “did not discriminate against the complainant in the manner alleged”, rejecting the equality complaint along with a further complaint of penalisation.

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