The Irish High Court has overturned a decision of the Labour Court that the Irish Prison Service (IPS) had a blanket exemption from providing reasonable accommodation to its employees under Irish equality law.
The prison officer in the case, Robert Cunningham, suffered a serious back injury following two isolated assaults by prisoners. He underwent surgery three times as a result. In 2015, the Chief Medical Officer for the Civil Service certified Mr Cunningham as fit to work but unable to carry out any control and restraint duties in the medium or long term. The IPS formed the view that it could not accommodate Mr Cunningham with restricted duties, and suggested he could either resign and apply for administrative work or seek ill-health retirement.
Mr Cunningham brought a claim under the Employment Equality Act 1998, claiming that the IPS had discriminated against him on disability grounds and, in particular, had failed to provide reasonable accommodation as required by the Act. He argued that injured prison officers were previously accommodated by re-assigning them to positions with restricted duties. The IPS countered that control and restraint duties were fundamental to the role of prison officer, and pointed to its Accommodations Policy which provided for phased return to work of up the three months restricted duties only where full duties could be resumed thereafter.
Mr Cunningham was successful before the Adjudication Officer in February 2017. This decision was not upheld by the Labour Court, which found the IPS was entirely exempt from reasonable accommodation by virtue of section 37(3) of the 1998 Act which provides that it is an “occupational requirement” of employment with bodies such as the prison service and Gardaí that there is capacity to carry out the full range of functions that they may be called upon to perform.
In overturning this decision, the High Court found that section 37(3) did not “absolve” the IPS of the duty to provide reasonable accommodation for employees with a disability if it could be reasonably done while preserving the operational capacity of the service.
Mr. Justice Barr agreed with the legal submissions put forward by the appellant that there “has been a paradigm shift in the way that disability is to be viewed in European and Irish law” proven by the European case HK Danmark, acting on behalf of Jette Ring (applicant) v. Dansk Almennyttigt Boligselskab (respondent) (case C-335/11 and case C-337/11 2013 IRLR 571)and the recent Irish landmark case Nano Nagle School v. Marie Daly  IESC 63.
Mr. Justice Barr said, “the judgements of [these cases] make it clear that the provisions of the Framework Directive of the [Employment Equality] Act provide rights of real substance to persons of disability, who wish to enter or remain in work”. He further explained that Nano Nagle put an obligation on the court to interpret section 37(3) of the Act in light of Article 27 of the Convention on the Rights of Persons with Disabilities. This article requires state parties to recognise the right of persons with disabilities to work on an equal basis with others.
Mr. Justice Barr stressed that this did not mean that employers were under an obligation to create a job for the person with the disability, nor does that employer have to provide measures that are unduly burdensome. Each case will turn on its facts and the size and nature of the emergency service concerned. It is a test of proportionality or reasonableness which the respondents in this case did not meet because there was strong evidence put forward by Mr Cunningham that other positions existed within the prison service that would not require contact with prisoners and which had, in fact, been given to employees on a long-term basis due to ill-health or otherwise. Justice Barr concluded that justice requires that the person suffering from the disability be given the chance to make his or her case that they could perform the functions required of them if reasonable accommodation was provided.
As Mr Cunningham was not afforded this opportunity, the High Court remitted the matter to the Labour Court for fresh consideration.
Mr Cunningham was represented by the Irish Human Rights and Equality Commission.
Click here for the full judgement.
Click here for the Irish Human Rights and Equality Commission’s press release.