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  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..”
UPDATE JANUARY 2021
The prison service appealed the WRC decision to the Labour Court and was successful in having the decision overturned.
Mr Cunningham appealed this decision to the High Court and was successful insofar as the High Court sent the case back to the Labour Court for consideration.
The Prison Service then appealed this decision to the Court of Appeal and were successful. Mr Cunningham made a preliminary objection to the jurisdiction of the Court of Appeal and lost.
You can read that decision here.