The High Court has held that Dublin Bus had an established workplace practice under which drivers could, in defined circumstances, be entitled to temporary rehabilitative duties when medically unable to perform their full normal role.
John Carroll, who had worked as a Dublin Bus driver since 1984, brought proceedings concerning both his absence from work and a purported decision to dismiss him. He claimed that from August 2003 he should have been allowed to return to work on a rehabilitative route, subject to medical restrictions, and should therefore have continued receiving wages.
Mr Justice Clarke said an employer is not ordinarily obliged to find alternative work for an employee medically unable to perform the job for which they were employed. That position can change, however, where an express contractual term or a sufficiently established custom and practice creates such an obligation.
Evidence showed that Dublin Bus had for years used certain duties for rehabilitation. The Airlink service had a formally recorded agreement, while other routes known as “universals” and “bogeys” were also used for drivers returning in restricted circumstances.
The court found that this practice was sufficiently established to form part of employees’ contracts. It did not, however, give a driver an unrestricted right to choose or demand a rehabilitative route.
Clarke J held that three conditions applied: the CIE Chief Medical Officer had to recommend the driver as suitable; an appropriate route had to be available; and there could be no other good reason against the assignment. Any placement was also limited to a reasonable rehabilitation period determined or reviewed medically.
The supplied judgment records that Carroll’s relevant fitness difficulties concerned his back and groin. However, the text provided ends while the court is beginning to apply the contractual findings to his individual circumstances, so the ultimate ruling on his rehabilitation claim, dismissal challenge and damages claim is not contained in this source extract.