The Court of Appeal has rejected Robert Cunningham’s preliminary objection to the Irish Prison Service’s appeal in his disability discrimination case, ruling that the Service is entitled to pursue its appeal from a High Court decision.
The judgment, delivered by Maurice Collins J on 29 January 2021, resolves only whether the Court of Appeal has jurisdiction. The substantive appeal, concerning the interpretation of employers’ duties to provide reasonable accommodation, was not before the court.
Mr Cunningham, a prison officer, suffered back injuries at work and underwent several operations. After surgery in February 2015, the Prison Service was advised that he was unlikely to return to full duties, including restraint and control work. In November 2015, he was told he could not return as a prison officer and was offered the option of seeking a role as a Prison Administrative and Support Officer or retiring on ill-health grounds.
He brought a claim under the Employment Equality Act 1998, alleging disability discrimination and arguing that the Service should accommodate him in duties without prisoner contact. A Workplace Relations Commission adjudication officer ruled in his favour. The Labour Court allowed the Service’s appeal in 2018, finding that section 37(3) of the Act provided a complete defence.
The High Court allowed Mr Cunningham’s appeal on a point of law in June 2020. It found that section 37(3) did not remove the Service’s duty to provide reasonable accommodation where this was not unduly burdensome and would not harm operational capacity. The claim was remitted to the Labour Court to consider whether accommodation was possible on the evidence. The Prison Service then appealed to the Court of Appeal.
Mr Cunningham argued that provisions in the Workplace Relations Act 2015 excluded a further appeal and that allowing one risked unreasonable delay and breached fair trial rights. The Court of Appeal held that section 46 of the 2015 Act did not apply to claims under the 1998 Act. It found that section 90(1) of the 1998 Act governed the High Court appeal and did not exclude a further appeal to the Court of Appeal.
The court also rejected the argument that the possibility of another appeal was, by itself, incompatible with the right to a hearing within a reasonable time. It said the overall duration must be assessed in the circumstances of a case and could not be determined in advance here. A request for a declaration that the legislation was incompatible with the European Convention on Human Rights was raised too late and could not be entertained; the court added that such a declaration would not bar the Service’s appeal.
The court said it would seek to have the substantive appeal heard without undue delay. It indicated that the Prison Service appeared entitled to the costs of the preliminary issue, with any costs order stayed until the substantive appeal is decided. Either party was given 14 days to seek a different costs order.