The High Court has sent a prison officer’s disability discrimination claim back to the Labour Court, ruling that the Labour Court wrongly dismissed it without hearing evidence on whether he could be accommodated in a prison officer role.
Mr Justice Barr delivered judgment electronically on 9 June 2020 in an appeal under section 90(1) of the Employment Equality Act 1998. The appeal concerned the Labour Court’s interpretation of section 37.3, which addresses the functions workers may be required to perform in the Prison Service and other emergency services.
The appellant, Robert Cunningham, joined the Irish Prison Service in 2005. After back injuries sustained in two incidents involving prisoners, he had three operations. In 2015, the Chief Medical Officer advised that he should be excluded from control and restraint duties. The Service told him he could resign and apply for a Prison Administration Staff Officer position, or apply for ill-health retirement. He declined the first option, citing its effect on his pay and retirement benefits.
Cunningham argued that prison officers could work in posts without prisoner contact or control and restraint duties, and that some officers had been assigned restricted duties long term. The Service argued that control and restraint was fundamental to a prison officer’s role and that all officers had to be capable of responding to violence. Those competing claims about the job and available posts had not been tested by witnesses.
The Adjudication Officer had ruled for Cunningham. On the Service’s appeal, the Labour Court overturned that decision on a preliminary issue, without hearing evidence about the feasibility of accommodation. It held that section 37.3 exempted the Service from a discrimination complaint where an officer could not perform the full range of duties.
The High Court held that section 37.3 did not, by itself, remove the duty to consider reasonable accommodation. The question depends on the circumstances: whether the person could perform the functions required in their particular role with accommodation, without undue burden and without adversely affecting the Service’s operational capacity. The court also said an employer could not simply certify for itself that an employee was incapable of the relevant functions.
The judgment did not decide whether Cunningham could be accommodated, whether any proposed arrangement was reasonable, or whether the Service’s operational capacity would be affected. It found that the Labour Court had assumed the Service’s position on control and restraint requirements without allowing Cunningham to challenge it with evidence. The High Court allowed the appeal and remitted the matter to the Labour Court to consider the factual evidence.