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

Guidance from the Supreme Court in the ‘Nano Nagle’ Reasonable Accommodation Case

supreme court nano nagle

The recent Supreme Court decision in the ‘Nano Nagle’ is worth a closer look by both employers and employees who are concerned with what is expected by way of ‘reasonable accommodation’ for an employee with a disability.

This obligation on an employer to provide ‘reasonable accommodation’ to an employee is set out in section 16 of the Employment Equality Act 1998.

Section 16 of the act provides, inter alia,

F33 [ (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.]

(4) In subsection (3)—

F34 [ ‘appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

In overturning the Court of Appeal decision in the case the Supreme Court held that there was no reason why providing reasonable accommodation should not involve a redistribution of duties in the workplace, provided this did not place a disproportionate burden on the employer. In making this finding the Supreme Court held that it was not enough for the employer to merely divide up the job between essential duties and non-essential tasks, as the Court of Appeal had decided.

You will note from section 16 above that there is a non-exhaustive list set out in the Employment Equality Act 1998 which includes ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’.

This Supreme Court decision goes a step further in placing an obligation on the employer.

It has done so by suggesting that the employer must look not only at a redistribution of the tasks of the role but must look at a redistribution of the essential duties and functions of the employee’s job. The Supreme Court arrived at this finding on the basis that the Act in question obliges the employer to consider all appropriate measures to provide reasonable accommodation provided the cost of doing so would not be disproportionate.

The Supreme Court held, in essence, that the ‘test is one of reasonableness and proportionality’ but there was an obligation on the employer to explore whether public funding would be available to assist with the provision of reasonable accommodation.

As for consulting with the employee the Court of Appeal held that there was no obligation for employee participation in the process. The Supreme Court on the other hand held that while there was no statutory obligation to consult with the employee it made sense and would be sensible for the employer to do so.

The Court also reaffirmed the long held position that the employer was not obliged to create a different job for the affected employee.

Rap on the knuckles for the Labour Court

The Supreme Court also gave a slight rap on the knuckles to the Labour Court by finding that it had failed in its duty to consider all relevant evidence in the case and failed to provide reasons for its conclusions based on the evidence and sent the case back to the Labour Court for further consideration on specific points.

The Court also criticised the Labour Court for failing to give any reason for the level of compensation it had awarded on the grounds that fair procedures would dictate that parties are entitled to know the reasoning behind the level of an award.

Read the Supreme Court decision here: Nano Nagle School v Daly [2019] IESC 63

Categories
Equality and Discrimination

Discriminatory Dismissal Leads to €46,000 Compensation Award

workplace discrimination ireland

Could you afford an employment law award of €46,000 against you? Let’s face it you would be hard pressed to just take it on the chin and chalk it down to experience.

But that is what you could be facing if you are at the losing end of a WRC decision as occurred recently in a case involving a claim founded on discrimination.

An office manager in a software firm was awarded €46,000 in compensation by the WRC for her discriminatory dismissal.

The employee who brought the claim had an incurable degenerative disease (fibromyalgia) and was dismissed whilst on sick leave. This disease caused her muscle pain, fatigue, sleep and memory problems.

The €46,000 award comprised 2 parts:

  1. €23,000 in respect of the actual discriminatory dismissal and
  2. €23,000 for the failure of the employer to make reasonable accommodation in allowing the employee to continue in her job.

The award took into account the way the employer dismissed the employee: by telephone.

Background

The background to the case is the employee was employed since 2015 and went on certified sick leave in May 2017; in November 2017 she was dismissed by conference call. Whilst she was out sick her occupational therapist made a number of recommendations as to how she could be accommodated in the workplace including:

  • Working from home
  • More rest breaks
  • Flexible working rosters
  • A temporary reduction in working hours.

The employee was then involved in a car accident in August 2017 and she was not expected to return to work until January 2018 as she required a spinal implant procedure.

However, in November 2017 she was told by phone that she was being given one month’s notice of dismissal but would be paid in lieu of notice and her termination was, therefore, with immediate effect. The employer mentioned incapacity and “the problems her absenteeism were causing.”

In her evidence at the WRC the employee told that she was not given any warning of her potential termination nor was she given the chance to appeal the decision. The employee was on certified sick leave at the time and was taken aback at the decision which had a significant impact on her from a personal and financial perspective.

She also spoke of the pride she took in being able to work despite her difficulties and she was anxious to show that sufferers from such diseases/disabilities can do things and take part in the workplace.

The employer denied it failed to offer reasonable accommodation and stated it could not hold her position open indefinitely.

Warning for employers

This case is further evidence, if any were needed, that employers need to be very careful about how they deal with their employees, especially when it comes to terminating employment on the grounds of incapacity.

Employers are perfectly entitled to terminate an employee’s job on the grounds of incapacity but only after looking carefully at the options, obtaining updated medical evidence, warning the employee his/her job is at risk of termination, and giving them the opportunity to appeal the decision.

Otherwise, the employer runs the risk of a discrimination-based claim either on the grounds of discriminatory dismissal or straightforward discrimination or failure to make reasonable accommodation for the employee’s continued employment.

Categories
Equality and Discrimination

How Far Must the Employer Go With Appropriate Measures to Avoid Disability Discrimination? Court of Appeal Decides in Nano Nagle Case

disability discrimination

The Court of Appeal issued an interesting and important decision last week in relation to how far an employer must go to make reasonable accommodation and take appropriate measures to facilitate an employee with a disability. (Read the full decision of the Court of Appeal here).

A special needs assistant in a school, Nano Nagle School, since 1998 suffered horrific injuries in a road traffic accident in 2010. She was anxious to return to her old role in the school in 2011 but the employer was concerned about her ability to discharge her duties.

Occupational therapist report

An occupational therapist report was commissioned and this found that Ms Daly was capable of undertaking 9 out of 16 tasks required of an SNA. On foot of this report, and concluding that she would not be able to fulfill her role as an SNA now or in the future, the school refused to allow her to resume her position.

Equality tribunal

Ms Daly brought a claim to the Equality Tribunal on the basis that the school had failed to make reasonable accommodation, and take ‘appropriate measures’, for her return to work. This is a legal requirement pursuant to the Employment Equality acts, 1998 to 2015; in particular, section 16 (3) and (4) states that

F33 [ (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. ]

(4) In subsection (3)—

F34 [ ‘ appropriate measures ’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

Ms Daly lost her case at the Equality Tribunal and appealed to the Labour Court, and the Labour Court found in her favour as it held that the employer had failed to make reasonable accommodation for her return to work.

High Court

The employer then appealed this decision to the High Court and the High Court, too, found in favour of Ms Daly. It found that the ‘appropriate measures’ referred to in section 16 (4) above did not require Ms Daly to be able to discharge all the duties associated with her role as an SNA as it obliged the employer to make changes to patterns of work and working time to accommodate her.

The employer then appealed this decision to the Court of Appeal who issued its decision last week (on 31st January, 2018).(Read the High Court decision here).

Court of Appeal

The Court of Appeal found that the Labour Court and High Court did not place enough weight on the health and safety concerns arising from Ms daly’s inability to provide hands on intervention in the class. It also found that the Labour Court had failed to have sufficient regard for the efforts of the school to engage Ms Daly as a ‘floating SNA’ when the school had attempted to obtain funding for such role, but was refused by the relevant funding body.

The Court of Appeal also held:

The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.

The Court of Appeal also considered the significance of Ms Daly being able to do some, but not all, tasks required of a SNA. It stated:

“Adjustment to access and workplace hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16(1) must be respected.”

You will note that the Court of Appeal found that reasonable accommodation and ‘appropriate measures’, as required by the Employment Equality Acts, does not require the creation of a new position. Rather, the Court of Appeal found that

The section requires full competence as to tasks that are the essence of the position

Court of Appeal: Nano Nagle School -v- Daly [2018] IECA 11 

Takeaway for employers

The employer needs, as always, to act reasonably and obtain appropriate professional reports. He also needs to see whether he can distribute non essential tasks as part of his taking ‘appropriate measures’ to accommodate the employee.

However, it is reasonable for him to expect the employee to be competent as to the tasks which are the essence of the position, and if this is not the case then he may be justified in terminating the employment on the grounds of incapacity.

Supreme Court Appeal

At the time of writing (29th September, 2018) this case is under appeal to the Supreme Court.

Update: this case was heard by the Supreme Court in March, 2019 and judgment is awaited.

Update 31st July 2019-Supreme Court Overturns Court of Appeal

The Supreme Court, in a decision handed down on 31st July 2019, overturned the Court of Appeal decision in this case. You can read the full Supreme Court decision here:Nano Nagle School v Daly [2019] IESC 63

Specific matters are to be remitted to the Labour Court for further consideration.

Categories
Employment Claims Equality and Discrimination

A Tale of Discrimination (Vera’s Story)

discrimination story

Vera loved rabbits.

She used to remind me of Lennie in Steinbeck’s short novel, “Of Mice and Men”, although, unlike Lennie, she was sharp as a tack.

Vera started working in retail when she was 15, straight out of school.

She worked her way up in the retail industry-mainly small shops- and found herself as manager of a shop on the northside of Dublin after 35 mostly good years.

She got on great with her employer, Jimmy, who owned the shop, and he, like Vera, was “old school”.

He was a kind man and was happy to generously give Vera time off for family events or hospital appointments, which Vera never took advantage of.

When Jimmy came to tell her that he had sold the shop she was a little bit anxious, because she didn’t know what to expect from the new owner, or how things might change.

Her worst fears were soon realised when she met her.

Geraldine was a go-goeting, ambitious young woman of 25 who had been given a leg up in her aspiring entrepreneurial career by her father. He guaranteed the loan to buy the shop, and gave her the deposit,too.

Soon after taking over the shop Geraldine dropped a few remarks to Vera which Vera thought were inappropriate.

Little remarks like, “we will have to get our costs down, Vera, especially the wages bill”, and “how long do you think you will continue working?”, and “can we manage with less full timers?”

All the little digs worried Vera.

A few months after the change of ownership Vera’s GP recommended that she have some minor surgery carried out as the best way to deal with an ongoing medical issue she had.

Vera eventually bit the bullet and went in for the surgery.

The surgery was successful and her GP was happy with the outcome. However, he recommended Vera take it easy for 3 or 4 weeks when she went back to work-no heavy lifting, no pulling or dragging heavy stock, and to avoid stretching too vigorously.

Vera was fed up at home and was one of those people who had to be at something; she just couldn’t sit still for any longer than an hour.

So she was looking forward to going back to work.

She went to Geraldine to let her know when she would be back and what her GP had recommended by way of an easing back into the more vigorous parts of her job.

Vera was amazed with Geraldine’s reaction.

“Vera, I am not happy to let you back to work until you are fully fit to do your job in its entirety. Why don’t you wait a few more weeks until you are fully recovered?”, she said.

“But I want to go back to work now”, said Vera, “and the doctor said it would be good for me, provided I avoid some tasks for a few weeks”.

The conversation ended on a sour note, and Vera was stunned.

The next day she received an email from Geraldine saying that she could not let her return to work until she was fully fit. In her email she mentioned “health and safety” and “insurance” and “duty of care to employees”.

Vera was not going to take this lying down, she had given 35+ years of service in a job she loved and was not going to be “put out to grass like this”, as she saw it.

Vera came to see me and we had a good chat. Even though she was a small lady, bird like, she had a real steel about her. She told me she was brought up in Cabra, one of a family of 11, and she told me you soon had to learn how to stand up for yourself.

She said when she was 11 or 12 she used to go down to Croke Park on big match days and sell stuff to the crowd going to the GAA matches: apples, oranges, paper hats (the ones which, if it rained, all the colours ran out of), flags, you name it.

I told her about a case I had read about, where a man-I think he worked in a quarry in Galway- who wanted to return to work after brain surgery was dismissed and brought a claim for discrimination on the grounds of disability.

The man could only work for 20 hours per week on his return, on his doctor’s recommendation, but the employer wanted him to return to the full 39 hours.

They could not reach agreement so the employer dismissed him. The employee brought a claim under equality legislation and claimed that he was discriminated against on the grounds of disability, and the employer has failed, contrary to his legal obligation, to make “reasonable accommodation” for his return to work.

The worker was awarded €40,000 by the Equality Tribunal. (You can read more about that case here.)

It struck Vera and me that her situation appeared to be very similar to this man’s. No two cases are the same, of course, but there are certain guiding principles you can draw from cases with similar facts.

So, Vera decided to bring a claim against the employer and her claim was that she was being discriminated against by her employer on the grounds of disability, and the employer has failed, contrary to the Employment Equality Acts to make reasonable accommodation for her return to work.

Vera felt she was being effectively dismissed by the employer’s refusal to let her take it easy for a few weeks in relation to a handful of tasks.

Vera was so angry about the way she was treated that she resigned. Not long afterwards, Vera had a new position in retail, but she was not going to let this lie.

We submitted her claim to the WRC, and felt Vera had a really strong case. Close to the day of the hearing the case settled and Vera accepted a nice settlement in relation to her claim.

She felt vindicated. She was working away in her new job, but felt she had to take a stand in relation to the way she was treated, and the lack of respect shown to her by Geraldine.

Takeaway

There are 9 grounds of discrimination in Irish employment law, and disability is one of them. However, the definition of a “disability” is so broad, that even a runny nose has been held to be one.

A disability can be temporary or permanent, and can include an addiction to alcohol or drugs.

The monetary penalties for discrimination are high: up to 2 years’ remuneration for the employee from the WRC and the Circuit Court can award up to its jurisdictional limit.

And Vera?

She is working away, managing another shop, and happy to be back in full swing having made a full recovery from her surgery and the way she was treated.