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Labour Court must reconsider complaint on factual evidence and in line with findings 
The Irish Prison Service is obliged under the Employment Equality Act to try to make “reasonable accommodation” for a disabled prison officer if that can reasonably be done while preserving the service’s operational capacity, the High Court has ruled. 
In a significant judgment on Tuesday, Mr Justice Anthony Barr overturned a Labour Court preliminary finding that the prison service has a blanket exemption, by virtue of section 37.3 of the Act, from a complaint of discrimination on grounds of disability made by Robert Cunningham. 
Aged 40, Mr Cunningham, who joined the prison service in 2005, suffered serious back injuries after being assaulted by two prisoners, and underwent three operations. 
In 2015, the Chief Medical Officer for the Civil Service certified he would not be fit to carry out any restraint and control duties in the medium or long term. 
He complained after the prison service told him he could not retain his job because he could not perform restraint and control duties, but he could resign and apply for a lower paid position or seek ill-health retirement. 
He brought a claim under the Employment Equality Act 1998, alleging discrimination on grounds of disability, and that the prison service had failed to make any reasonable accommodation for him as required by the Act. 
The Labour Court held that, because Mr Cunningham cannot perform control and restraint duties, the prison service was exempt, as a result of section 37.3, from his complaint. 
The Irish Human Rights and Equality Commission provided legal representation to Mr Cunningham in appealing to the High Court. 
In his judgment, Mr Justice Barr noted Section 37.3 provides it is an “occupational requirement” for employment in the Garda, Defence Forces, prison service and emergency services that persons are capable of carrying out the full range of functions they may be called on to perform. 
He said Section 37.3 does not exempt emergency services from providing reasonable accommodation for a disabled employee but merely enables them to show that capacity to carry out a particular range of functions is an occupational requirement for employment in the particular service. 
Reasonable accommodation 
Section 37.3 does not “absolve” the prison service of duty to provide reasonable accommodation for the disabled person if that can reasonably be done while at the same time preserving the operational capacity of the service, he said. 
Everything will turn on the facts of a particular case and the size and nature of the emergency service concerned, he stressed. 
The correct interpretation of section 37.3 did not mean the prison service can “self-certify” that Mr Cunningham cannot perform the range of functions of a prison officer because he cannot perform control and restraint functions, and therefore the prison service was not obliged to make reasonable accommodation for him. 
Mr Cunningham had said other prison officers had been given prison service posts on a long-term basis due to ill-health or other reasons while the prison service had said it could give evidence that control and restraint is a fundamental requirement of the role of a prison officer. 
There was clearly an issue of fact to be determined in that regard, the judge said. An employer is also not required to create a job for a person with a disability or provide measures that are unduly burdensome. 
Justice requires the person with a disability be given the chance to make a case that they could perform the function required of them if reasonable accommodation were made for them which was not “unduly burdensome” to the employer and did not impair the operational capacity of the emergency service, he said. 
Because Mr Cunningham was not given that opportunity, the judge allowed his appeal over the Labour Court decision. The Labour Court must now reconsider the complaint, on factual evidence and in line with the judge’s findings. 
Earlier, Mr Justice Barr noted there had been a “paradigm shift” in the way disability has to be viewed in Irish and European law, with laws providing rights “of real substance” to persons with disabilities who wish to enter or remain in work. The UN Convention on Rights of People with Disabilities is also relevant to the correct interpretation of the 1998 Act, he added. 
The Irish Human Rights and Equality Commission, which provided legal representation to Mr Cunningham in appealing to the High Court, welcomed the outcome as “another clear statement from Ireland’s superior courts that people with disabilities have the right to work on equal terms”. 
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