Categories
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.

Background

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.

Categories
Equality and Discrimination

Shop Assistant Awarded 2 Years’ Salary for Discriminatory Dismissal

workplace discrimination ireland

When Jimmy came to see me after he was dismissed from his job I advised him against bringing a claim for unfair dismissal. And that decision has now paid off handsomely.

Because Jimmy has now been awarded 2 years’ salary for the claim arising from his dismissal-a discrimination claim under the Employment Equality Act 1998, not the Unfair Dismissals Act 1977.

Let me explain why we made this decision.

I was confident that Jimmy was unfairly dismissed, but if he is successful in his unfair dismissal claim under the Unfair Dismissals Act 1977 he is only entitled to financial loss. Because Jimmy obtained a new job quickly after his dismissal, he would only have been entitled to 1 month’s wages if he was successful with an unfair dismissal claim.

However, if Jimmy could prove a discriminatory dismissal, he could be awarded up to 2 years’ salary, regardless of whether he got a new job or not. Because the award under the Employment Equality Act 1998 is for the act of discrimination and the WRC adjudicator has wide discretion as to the amount to be awarded, assuming he wins his case.

And that is what the adjudication officer has done in this case, the decision of which you can read at the bottom of this page.

Obviously in order to have a choice in a situation like Jimmy’s the employee must have been discriminated against on one of the 9 grounds of discrimination. Therefore, the choice may or may not arise, depending on the circumstances.

In Jimmy’s case he was dismissed whilst he was out on certified sick leave so we made the argument that this was a discriminatory dismissal on the basis that Jimmy was suffering from a disability at the time of the dismissal and it was a central factor in the termination of his employment.

Parallel or duplicate proceedings

Generally, you cannot bring a claim under two different acts arising from the same set of circumstances, and you may be forced to pick one claim or the other. In this case we chose, for the reasons set out above, to pursue the claim under the Employment Equality Act 1998.

A recent case which I have written about saw the employee being awarded compensation under the Employment Equality Act 1998 and the Maternity Protection Act 1994. But section 101 Employment Equality Act 1998 states, inter alia,

F183 [ (4A) (a) Where an employee refers —

(i) a case or claim under section 77 , and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

Conclusion

Frequently the decisions you make before you submit your claim to the Workplace Relations Commission, and what claim you bring, will prove to be strategically important later.

Footnote: please note Jimmy is a pseudonym of my client’s real name.

Read the full anonymised decision here.

Categories
Equality and Discrimination

Parallel Proceedings-WRC Decides Both Maternity Protection Act and Employment Equality Act Claims Can Be Pursued

maternity-leave-ireland

This case involved a woman who worked as a HR manager returning to work after her maternity leave and discovering she was not, according to her, returning to the same job she had left.

She brought claims under the Maternity Protection Act 1994 and the Employment Equality Act 1998.

Preliminary issue

The employer’s legal team raised a preliminary point: that the Complainant could not pursue claims under the two different acts arising from the same set of facts.

They argued this would be an example of parallel proceedings and they relied on a Labour Court case, Power v Jahan Company t/a Irema Ireland Limited EDA 1326.

In that case the Labour Court decided the employee could not bring a claim to the Labour Court under the Employment Equality Acts because the employee had already received a decision arising from the same circumstances from a Rights Commissioner hearing under the Maternity Protection Act 1994’

The matter was held to be res judicata.

In the instant case the Complainant argued she could bring a claim under both statutes, but if forced to choose would opt for the Employment Equality act 1998.

The Adjudicator Decision

The WRC adjudicator looked at the decision of the Labour Court and its reliance on Cunningham v Intel Ireland Limited (2013) IEHC 207 and noted the High Court held

All matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings

The Labour Court had decided that the employee could not ventilate her complaint under the Employment Equality Acts as the complaint had already been adjudicated at the Rights Commissioner hearing and a remedy applied. It was, therefore, res judicata.

However, the adjudicator distinguished that case from the instant one because no previous hearing of this complaint had been heard or adjudged. Res judicata did not apply.

Also, the present claim under the two different acts would be adjudged at one sitting, not two as had occurred in Power.

Reference was also made to Financial Administrator v a Telecommunications Provider, ADJ 15172 where the adjudicator awarded redress under both acts where the same facts grounded complaints under the Maternity Protection acts and the Employment Equality Acts.

For these reasons the adjudicator decided she was not prohibited from hearing both complaints, notwithstanding that they were arising from the same set of facts.

The Decision

The adjudicator found that there was a breach of the Maternity Protection Act 1994 insofar as the complainant was not allowed to return to the position she had left prior to going on maternity leave. The job to which she was expected to return saw her being relegated to a lower position-that is, she would have been one of three HR Business Partners reporting to more senior HR manager.

Her role was, therefore, reduced and the new role was not a suitable alternative under a new contract and she experienced less favourable terms and conditions.

The adjudicator found that the complaint was well founded and awarded her €9,547 -that is, 6 weeks remuneration. This was compensation for breach of the Maternity Protection act 1994 and takes into account the redress awarded in respect of her complaint under the Employment Equality Act 1998.

The decision on the WRC website does not specify any compensation awarded under the Employment Equality act 1998.

However a report on the website IRN.ie which deals with industrial relations matters, and which has reported on the case, has reported here that the employee was also awarded €41,370 for gender discrimination. I have contacted the website to try to reconcile the difference and to ask where they obtained the figure of €41,370 for gender discrimination.

Read the full decision here. This is the WRC decision as reported on their website.

The Employment Equality Act Claim

The decision under the employment equality acts for discrimination was given here and you will note that the employee was awarded 6 months salary in the sum of €41,370.

Read the full decision in ADJ-00023183

Takeaway

This employee was awarded €50,917 in total under the two acts for claims which arose from the same set of facts and circumstances.

Categories
Employment Claims Equality and Discrimination

Two Discrimination Cases-Different Responses from Employer, Similar Outcome for Employee

employment claims
Cross examination notes

I have been involved in two discrimination cases which have been finalised in the last few weeks. The outcomes of the cases, coincidentally, are similar and have culminated in compensation for both employees.

The first one involved a case of sexual harassment in the workplace and resulted in a compensation payment, tax free, of €30,000. You can read more about that case, including the full decision of the WRC, here.

The other case, one you will not read about because it has been settled before ever going to the Workplace Relations Commission, has been settled for a similar sum of money. It was a discrimination case, not sexual harassment, as defined by the Employment Equality Act 1998.

The amount of work involved for me in both cases differed wildly, however.

The sexual harassment case involved a great deal of time and work and involved three days at the WRC: the first day was for mediation, the second day for the hearing, and the third day was to complete the hearing. Evidence had to be taken from two witnesses, cross examination of at least three witnesses, and booklets and submissions had to be prepared and submitted.

The second case, by contrast, only involved the submission of the complaint to the Workplace Relations Commission; shortly after this the solicitor for the employer made contact and the case was settled.

Responding to claims-professional or amateur?

I categorise responding to employment claims in two ways: professional or amateur.

When you bring any legal case or employment claim it is impossible to know how the other side will react.

One response is a pragmatic approach and a realistic attempt to settle the case by the party who is in the weaker position and is at risk if the case goes to a full hearing.

The risk, if you are the employer, involves an award of compensation against you, legal costs of representation, time taken to prepare for the case, and reputational damage.

The other response is to substitute cool analysis of the facts and the law with an emotional response to ‘fight the case’ to the end. This does not make much sense, quite frankly, but it is an easy reaction to embrace.

And if you have the money and are fully aware of the risks and costs, knock yourself out, if you want to. But the ‘professional’ approach, using logic and evidence rather than emotions, might serve you better in the long run.

Now, the professional response may be to fight the case in all circumstances, in order to discourage claims against you generally or copycat claims. But you should make this decision rationally after assessing all the relevant factors rather than responding emotionally.

The employee, too, must weigh up the chance of success versus the associated costs of representation, the probability of winning, and the potential remedies that can be gained. (This blog post, How to Make a Decision to Bring an Employment Claim to WRC or Not, might be worth a read.)

Categories
Equality and Discrimination

Catering Assistant Awarded €30,000 for Sexual Harassment

The WRC have awarded €30,000 to our client arising from a claim of sexual harassment in the workplace.

The claim was brought under the Employment Equality Act 1998 and in a comprehensive 20 page decision the WRC Adjudicator awarded her €30,000, not subject to any statutory deductions, which was the equivalent of 18 months’ wages.

The hearing was held over two days and evidence given by both complainant and employer was well tested.

Background

The complainant alleged that she had been sexually harassed in the workplace over a period of time which culminated in an incident in which she alleged she had been pinched in the bottom.

The employer, when advised of the allegation, carried out an investigation and made certain findings and recommendations.

We argued, however, that the findings of the investigation were irrational and perverse and flew in the face of the facts and evidence of other employees.

We also argued that the response of the employer was inadequate and an offer to transfer the complainant was unfair as she had done nothing wrong.

The law surrounding sexual harassment

Several important legal aspects of this case are worth considering.

The first has to do with the burden of proof and the obligation on the complainant, in the first instance, to establish facts from which a reasonable inference of discrimination could be drawn.

Once this prima facie hurdle has been cleared by the complainant the burden of proof shifts to the employer; but it must be cleared in the first instance in all cases alleging discrimination.

The employer has a defence in section 14 A of the Employment Equality Act:

it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

( a ) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

( b ) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

Was this defence open to the employer in this instance?

We argued that this defence was not open to the employer by reason of his failure to take reasonable steps to prevent the harassment or reverse its effects.

The WRC adjudicator agreed with our arguments insofar as she found that the response of the employer was inadequate and ‘avoided the responsibility to take the right action and deal with Patrick’s behaviour’.

She also agreed that the findings of the investigation carried out to be ‘contrived and evasive’ and the appointment of an external investigator may have led to a more ‘balanced and reasonable’ outcome.

She also agreed that the evidence of the complainant was truthful and credible and the evidence of the manager ‘doesn’t stand up’;  the decision to impose the ‘beyond a reasonable doubt’ standard of proof was ‘unfair’ and what was required was the imposition of the civil standard of proof of ‘on the balance of probability’.

To be clear, the standard of proof being set at ‘beyond a reasonable doubt’ is the appropriate standard in a criminal case, but not in a civil case or employment dispute/complaint investigation.

Interestingly, the WRC adjudicator also made the point that ‘sexual harassment is as much about power as about sex and the harasser’s intention was to humiliate the complainant and retrieve for himself some of the power she possessed’.

Conclusion

For employees it is important to know that sexual harassment in the workplace is taken extremely seriously by the Workplace Relations Commission. You must discharge the initial burden of proof to prove facts from which a reasonable inference of discrimination can be drawn. If you can do this the burden shifts to the employer.

The employer must note that having a policy in place which deals with sexual harassment and/or discrimination is not enough; the employer must go further and ensure that the policy and procedure is applied rigorously and fairly and reasonable responses happen if a finding of discrimination is arrived at.

Having a policy/procedure and going through a box ticking exercise will not be sufficient if the findings are irrational or the response is inadequate.

You can read the full decision of the Workplace Relations Commission here.

Learn more about sexual harassment here and the employer’s defence in a discrimination case here.