Equality and Discrimination

No Exemption for the Irish Prison Service to Make Reasonable Accommodation for Prison Officer With Back Problems

The High Court recently issued an interesting decision about the employer’s obligation to make reasonable accommodation for an employee who is unable to carry out the full range of duties. The case is Robert Cunningham and Irish Prison Service and The Labour Court [2020] IEHC 282.


Robert Cunningham is a prison officer and had brought a claim  under the Employment Equality Act 1998 (as amended) against the Irish Prison Service for failing to make reasonable accommodation for him to continue in his employment.

Mr Cunningham has suffered a number of back injuries over the years and was medically incapable of carrying out the control and restraint duties required of a prison officer. He is 40 years of age and has an exemplary record in the prison service. The injuries he suffered caused a bad back injury leading to a number of back surgeries, thereby preventing him from being able to carry out control and restraint duties.

He was offered a lower rank job with a significant drop in wages or a retirement on ill health grounds.

The Irish Prison Service was unable to provide reasonable accommodation for him and relied on section 37.3 of the Employment Equality act 1998 which states:

3) It is an occupational requirement for employment in the Garda S íochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda S íochána or the service concerned may be preserved.

The Irish Prison Service argued that this section provided an exemption to them from the obligations imposed under section 16 of the Act:

3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

Mr Cunningham brought a case to the Workplace Relations Commission and won but the employer appealed the decision to the Labour Court. The Labour Court decided, without hearing evidence, that the Irish Prison Service had an exemption, pursuant to section 37.3 referred to above, from providing reasonable accommodation if Mr Cunningham was unable to perform the full range of duties, including control and restraint.

Mr Cunningham appealed to the High Court on a point of law-that is, that the Labour Court had misinterpreted the Employment Equality Act.

The High Court

In the High Court Mr Cunningham’s counsel, Ms Kimber SC, argued that he was entitled to have reasonable accommodation under the provisions of the act by being given duties which did not involve prisoner contact. There were many such posts and examples given of other employees being accommodated in the Control Room or on the main gate, and so forth.

The employer’s argument, put forward by Mr Ward SC, was the prison service was exempt from the obligation to provide reasonable accommodation pursuant to section 37(3) of the Employment Equality Act 1998 (as amended).

The Labour Court had not heard any evidence from workers who were accommodated with restricted duties on a long term basis and held that section 37.3 provided a complete exemption to the Irish Prison Service due to Mr Cunningham was not capable of performing control and restraint duties.

Ms Kimber SC contended that the Employment Equality act 1998 was enacted to implement the Framework Directive for equal treatment in employment and the Employment Equality act should be interpreted in that context and should be interpreted by the High Court so as to give effect to the terms and objectives of the Directive.

Mr Ward SC contended that the act should be interpreted by giving words their ordinary and natural meaning so as to give effect to the Oireachtais and the wording of section 37.3 was clear and unambiguous.

High Court Decision

The High Court referred to the Nano Nagle case as one which set out a shift in the way disability is to be viewed in the workplace in European and Irish law and the right of a person with a disability to dignity in the workplace.

The correct interpretation of section 37.3 was not that the employer-the Irish Prison Service-could simply self-certify that the employee was incapable of performing the range of functions required in the job and they were, as a consequence, relieved of any duty to provide reasonable accommodation for him.

Everything will depend on the circumstances of the case and in larger organisations there may not be a single characteristic function which is essential to be performed by all employees. By way of an example the Court referred to a Garda Siochana who may be in a wheelchair but could do a desk based job or be engaged in a department like the forensic document section or cybercrime.

The Court held that the Irish Prison Service was an organisation of magnitude and which had varied posts of work available. Whilst the employer does not have to create a job for an employee, and they do not have to provide measures that are unduly burdensome, they do need to look at the operational capacity of the organisation and see if they can retain a role which did not involve control and restraint for officers who may need temporary access to restricted duties.

The High Court held that the Labour Court was in error in failing to hear evidence and make findings of fact in the case and made a point of law that the interpretation of a particular section in a statute does not exist on its own, it must be applied to the facts in order to reach a determination in a particular case.

It is the application of the decision reached by a court on a point of law to the facts as found by the court which gives the ultimate decision.

The Labour Court did not do this in this case as it heard no evidence and the High Court held that all factors should have been considered in the particular case before it.

The High Court held that the exemption contended for by the Irish Prison Service did not go as far as contended and the requirements of the Directive mandate that the employee be given reasonable accommodation to be permitted to continue in the employment.

The correct interpretation of section 37.3 was not that the employer was exempt from the obligation to make reasonable accommodation for the person if it is not unduly burdensome for them to do so.

The High Court sent the case back to the Labour Court for a consideration of all the factual evidence in the case and held:

“everything will turn on the facts of a particular case and the size and nature of the emergency service concerned. Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them..”

Read the full decision here.


Tax Treatment of Termination of Employment Payments

mployment awards taxation

Certain payments made to you on the termination of your employment may be exempt from tax. Let’s say you have been made redundant and you are being offered a termination/severance package and agreement.

This type of agreement will typically include 4 types of payment:

  1. Statutory redundancy payments  
  2. Ex gratia severance payments from an employer
  3. Notice pay
  4. Holiday pay

Notice pay and holiday pay is fully taxable in the normal way.

i) Statutory Redundancy payments

Statutory redundancy payments are tax free.

Statutory redundancy is calculated as follows

  • Two weeks’ pay for each year of reckonable service between ages of 16 and 66, plus one extra week, subject to a maximum weekly payment of €600.

ii) Ex gratia payments from employers

There is a basic tax free exemption on ex-gratia payments received from the employer. 

The basic exemption starts at €10,160 + €765 for each completed year of service. 

The basic exemption may be increased by €10,000 IF 

(a) the employee has not in the previous ten years claim any benefits under section 201 Tax Consolidation Act 1997 and 

(b) the employee is not a member of a occupational pension scheme, or if a member the employee has irrevocably given up the right to receive a lump sum from the scheme.

Standard Capital Superannuation Benefit (SCSB)

This is an additional benefit an employee may be entitled to and benefits long serving employees with high earnings. It is calculated using the formula 

(A x B) /15 – C


A = 12 months average of the remuneration from the last three years

B = Number of completed years of service 

C=Any tax free lump sum received or receivable under the employer pension scheme.


If you are receiving a significant sum of money by way of a termination payment arising from the termination of your employment I would strongly recommend that you obtain taxation advice. Failure to do so could lead to an unpleasant surprise and a tax liability.

Working Time/Rest Periods

Calculating Hours Worked for Banded Hours Contracts-Is Annual Leave to Be Counted?


This case, between a ground staff member and an airline, turned on the question of how you are expected to calculate the hours worked for the purposes of awarding an employee a banded hours contract.

The employee had been placed on a banded hours contract pursuant to the Employment (Miscellaneous Provisions) Act 2018. Section 16 of this act provides for banded hours contracts to be given to employees based on the number of hours worked per week by an employee over a reference period.

In this case the employer placed the employee on a band which reflected hours worked over a reference period but did not include hours of full annual leave entitlement.

The employer’s position was that the legislation referred to the hours worked by the employee, and the employer was not obliged to consider time on annual leave. However, the employer did, on a discretionary basis, award some hours to the employee to cover the annual leave-that is, 4 hours “work” were awarded for each day of annual leave, and there was 21 such days.

The employer’s position was that there was no obligation to consider time that the employee was absent from work, regardless of the reason. They calculated the hours for the purposes of a banded hours contract by reference to clock in data, basic hours and overtime worked, and divided the total hours worked by 52 to arrive at an average weekly hours worked.

The employer also contended for the definition of working time as set out in the Organisation of Working Time Act 1997, section 2 as follows:

working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work,

and “work” shall be construed accordingly

Adjudicator decision

The adjudicator held that there was no express provision in the Employment (Miscellaneous Provisions) Act 2018 as to how absences from work are to be treated and no provision which deems time spent on annual leave (or other absences) as time worked for the purposes of section 18A of the Organisation of Working Time Act 1997.

Nonetheless the adjudicator held that the legislators, when drafting the legislation, did not intent the employee should suffer any disadvantage by taking annual leave. And section 22(2) of he Organisation of Working Time Act 1997 states

(2) For the purposes of section 21 , time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

He went on to hold

In the instant case, if the mode of calculation canvassed by the respondent were to prevail, as a matter of mathematical fact, in every case where an employee avails of annual leave, her average weekly working hours over a 12-month reference period would be artificially reduced below their actual average, or normal working hours. Such a result would be inconsistent with other provisions of the Act and could not reflect the plain intentions of the Oireachtas.

For all these reasons, it seems clear that an employee average weekly working hour in a reference period should be ascertained by taking the total number of hours worked by that worker over the reference period and dividing that number by the number of weeks actually worked in the same period.

Read the full decision here in ADJ-00024906

Employment Injunctions

High Court Orders 6 Months’ Salary Payment In Probation Dismissal Case

The High Court has issued a decision in a case involving a dismissal from the employment during probation that should be a warning for employers.


Donal O’Donovan, the chief financial officer (CFO), was dismissed in January 2020 by Over-C Technology, his employer, and confirmed this decision 10 days later.

Mr O’Donovan issued High Court proceedings seeking an injunction preventing his termination and a number of declarations including that his dismissal was unlawful and invalid, that he remained an employee, damages for breach of contract, breach of duty, and breach of his contractual right to fair procedures.

Mr O’Donovan’s contract of employment, which commenced in July 2019, contained a 6 month probationary period and a notice period of 1 month during the first year of employment, 3 months thereafter.

Mr O’Donovan was given a staff handbook but there was little in it concerning disciplinary procedures.

Mr O’Donovan was on holidays in December 2019-January 2020 and when he returned in January the CEO, Mr Elliot, terminated his employment with immediate effect and advised he would receive 1 month’s pay in lieu of notice.

The termination letter which was sent to Mr O’Donovan claimed his performance as CFO had failed to meet the necessary standard and he had mislead the board about projected sales figures, failed to prepare adequately for the board meeting, failed to answer a question about the cash position of the company.

Mr O’Donovan appealed this decision which was to be heard by a director of the employer.

However, he raised concerns about procedural aspects of the proposed appeal hearing including that the time appointed for the appeal was not suitable for him or his legal representative.

The director responded by saying that “I note you do not now wish to proceed with the appeal today. I now confirm your dismissal stands”.

Mr O’Donovan’s solicitor wrote to the employer claiming the dismissal was unlawful and in breach of his contract of employment. The employer’s position was that he had been dismissed during the probationary period and it was lawful and valid.

Application for injunction

The request for an injunction was based on the argument that his termination was carried out in breach of contract and in breach of his constitutional right to fair procedures.

Test for an employment injunction

The High Court pointed out that the general principles which apply are the Campus Oil principles (Campus Oil v Minister for Industry (No. 2) [1983] 1 IR 88). Put simply those principles are that the applicant must establish that:

 (1) there is a serious question to be tried on the applicant’s entitlement to a permanent injunction;

(2) the balance of convenience favours the grant of interlocutory relief, which requires, but is not limited to, a consideration of whether damages would be an adequate and effective remedy for an applicant who fails to obtain interlocutory relief but later succeeds in the action at trial and, if not, whether the applicant’s undertaking to pay damages would be an adequate and effective remedy for a respondent against whom interlocutory injunctive relief is granted but whose defence to the action succeeds at trial.

The Campus Oil principles hold that the applicant must establish a strong case, likely to succeed at the hearing of the action, not just that a serious question is to be tried.

The High Court then looked at whether Mr O’Donovan had, based on the evidence and arguments, established a strong case that he was dismissed for misconduct. The High Court decided

I am not satisfied that Mr O’Donovan has established a strong case, likely to succeed at the trial of the action, that he was dismissed, wrongly and in breach of his entitlement to fair procedures, for ‘misconduct’.

However, the High Court held that he had established a strong case that his dismissal was not properly carried out in accordance the terms of this contract by reason of the failure of the employer to draw his attention to the alleged performance issues which led to his dismissal.

The court recognised that the traditional common law position is that a contract can be terminated by the employer on reasonable notice whether for good or bad reason. However, a misconduct dismissal does give rise to an obligation to conduct the process in accordance with the principles of natural justice.

The High Court found that he had established a strong case that: (1) the stated reason for his dismissal was his sub-standard or unsatisfactory performance during his probationary period; (2) a fair procedures obligation in the conduct of the relevant performance assessment arises under the terms of his contract of employment; and (3) there was a breach of that obligation in this case.

The decision

The High Court decided:

In my judgment, Mr O’Donovan has established a strong case that he had an implied contractual right to fair procedures in the assessment of his performance during his probationary period, which right was breached in the manner and circumstances of both the decision on 7 January to summarily dismiss him for sub-standard performance and the decision on 17 January to deem his appeal against that decision to have been withdrawn.

67. I am satisfied that the balance of convenience or, differently put, the least risk of injustice favours the making of a Fennelly order in the following terms:

(1) That the defendants are restrained from repudiating Mr O’Donovan’s contract of employment pending the trial of the action on the following specific terms:

(i) That Mr O’Donovan is to be paid his salary for a period of six months from the end of January 2020 (and any applicable bonus and other benefit arising during that period), on the provision by him of an undertaking to carry out any of the duties of CFO that the defendants may require of him.

(ii) That the defendants are not required to assign any of the duties of CFO to Mr O’Donovan at any time pending the trial of the action but, insofar as they do beyond the period of six months from the end of January 2020 and pending  the trial of the action, must pay his salary (and any applicable bonus and other benefit) accordingly.

(iii) That the defendants may choose to put Mr O’Donovan on leave of absence rather than assign any duties to him, but that is without any prejudice to their obligation at (i) above.

(iv) That the defendants are released from their undertaking not to replace Mr O’Donovan by the appointment of a new CFO and may do so as they see fit.

68. I have fixed the period during which the defendants must pay Mr O’Donovan’s salary as one of six months, rather than the entire period pending trial, because, in light of Mr O’Donovan’s acknowledgment that the relationship of mutual trust and confidence between the parties has irretrievably broken down, his claim is, in reality, one for a fair termination process rather than for reinstatement in the role of CFO. It is also significant that, as Carroll J noted in Orr v Zomax Ltd [2004] IEHC 47, (Unreported, High Court, 25 March 2004) (at para. 58), on appeal to the Supreme Court in Fennelly, payment of salary was limited to six months.

Takeaway for employers

Employers need to be careful about affording fair procedures to the employee, even if he/she is on probation. Failure to do so may be a breach of the contract of employment as that contract may contain an implied right to fair procedures in having the employee’s performance assessed, which was the case in Mr O’Donovan’s case.

The employer’s failure in this case to accommodate Mr O’Donovan’s appeal was one of the factors for which the High Court had regard.

Read the full decision here.

Health and Safety

Illness benefit for Covid 19 absences from the workplace

Did you know that there is an enhanced illness benefit payment available for Covid 19 related absences?

When does it apply?

When a person has been told to self-isolate by a doctor or the HSE, or when they have been diagnosed with the coronavirus.

The illness benefit claim must be submitted online with a certificate of incapacity from work from a GP or the HSE and the rate of payment is €350 as opposed to the normal illness benefit rate of €203.

If you are ill and unable to work but it is not Covid 19 related then you are only entitle to the lower rate.

Also, if you are cocooning on health grounds you are not entitled to the enhanced rate but you may qualify for the normal rate of €203 per week. You will need a certificate of incapacity from work from your GP or the HSE.

You can apply online or by post for these payments.