Irish Prison Service (Represented by Peter Leonard, B.L., Instructed by the Chief State Solicitor's Office) v A Prison Officer (Represented by Cliona Kimber, S.C., Instructed by Reidy Stafford, Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 17 July 2018
• Judgment citation (vLex): [2018] 7 JIEC 1701
• Docket Number: FULL RECOMMENDATION DETERMINATION NO. EDA1837 ADJ-00002267 CA-00003047-001
• Date: 17 July 2018
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

ADE/17/19

DETERMINATION NO. EDA1837

ADJ-00002267 CA-00003047-001

PARTIES:

Irish Prison Service (Represented by Peter Leonard, B.L., Instructed by the Chief State Solicitor's Office)

and

A Prison Officer (Represented by Cliona Kimber, S.C., Instructed by Reidy Stafford, Solicitors)

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Mr Murphy

Worker Member: Ms Treacy

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

SUBJECT:

1 1. An appeal of an Adjudication Officer's Decision no ADJ-00002267.

BACKGROUND:

2 2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 28 February 2017 in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. Two Labour Court hearing took place on 17 October 2017 and 22 May 2018. The following is the Determination of the Court:-

DETERMINATION:

3 This is an appeal by the Irish Prison Service against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts), which found that the Respondent had failed to consider the provision of reasonable accommodation to a Prison Officer to enable him to return to his duties as a Prison Officer. The Adjudication Officer awarded €40,000 compensation.

4 For ease of reference the parties are given the same designations as they had at first instance. Hence the Prison Officer will be referred to as “the Complainant” and the Irish Prison Service will be referred to as “the Respondent”.

5 The Complainant referred his claim to the Workplace Relations Commission on 4th March 2016. The issue of time limits was dealt with as a preliminary issue. The Adjudication Officer held that the claim was in time and this decision was not on appeal.

Background

6 The Complainant has been employed as a Prison Officer with the Respondent since 5th March 2005. Following completion of his training in May 2005, he was assigned to Cloverhill Prison where he served as a Prison Officer for just over six years. On 18th June 2011 he was transferred to the Midlands Prison, Portlaoise. While serving as a Prison Officer at Cloverhill Prison in December 2007 he suffered injuries to his back while relocating a violent prisoner.

7 While on duty on 11th December 2011 the Complainant sustained a further injury to his back while moving a prisoner who became violent. He was out of work from 11th December 2011 to 18th May 2012. On 16th April 2012 having examined the Complainant, the Respondent's Chief Medical Officer advised that on his return to work, the Complainant should be assigned to non-prisoner contact duties. He was sanctioned accommodation postings and returned to work on 18th May 2012. On 12th March 2013, the Chief Medical Officer advised the Respondent that the Complainant could not involve himself in control and restraint duties with prisoners in the medium to long term and he was therefore assigned to restricted duties, this turned into lower risk duties going forward. At a later date he was carrying out wider risk duties and by May 2013 he was assigned his full duties. He queried this at the time and made applications for a transfer to the Security Screening Unit, the Operational Support Group and the Canine Unit. These are Units where there is no prisoner contact. The Complainant had further surgery in August 2013 and returned to his full duties at the end of September 2013.

8 In 2015 the Complainant had more surgery and sought to return to restricted duties. The Chief Medical Officer deemed him fit to return to non-prisoner contract duties from 11 ^th May 2015. The Complainant and Management entered into discussions on his return to work. By 15th October 2015 he was advised that the only option was to return to work under the terms and conditions of the Accommodation's Policy. By 29th October 2015 he was informed that, taking account of the Chief Medical Officer's advice, the only possible options open to him were to avail of ill health retirement or to transfer to PASO (Prison Administration Support Officer) grade. If neither of these options was agreeable to him then he could return to work for a period of three months under the Accommodations Policy and if there was no improvement in his condition within three months and he was not in a position to carry out control and restraint duties then he would have to go back out on sick leave.

9 As the Complainant was not satisfied with the options available to him he proceeded to submit his claim under the Acts.

10 The Accommodations Policy Documents states:-

• “Each period of Rehabilitative/Restricted duties should not exceed 3 months. Only in the most exceptional circumstances will accommodation of this nature extend beyond 3 months and only on the recommendation of the CMO having regard to the operational needs of the Irish Prison Service.”.

Summary of the Complainant's Case

11 Ms Cliona Kimber, SC., instructed by Reidy Stafford, Solicitors, on behalf of the Complainant, submitted that the Complainant is entitled to reasonable accommodation in accordance with Section 16 of the Employment Equality Acts and in particular to a distribution of tasks in accordance with Section 16(3) (a) and Section 16(4) (b). According to Ms Kimber, the task for which the CMO advised that the Complainant was not fit, namely control and restraint duties/training, is not required in a number of posts for which the Complainant has succeeded in being placed on a panel on which persons are ranked by seniority. Ms Kimber referred to a letter from the Respondent dated the 21st January 2016 which stated that “there are very limited posts available” and that these posts “ are required for pregnant staff.” She speculated therefore that a person who is pregnant is given priority over a person who is disabled. Ms Kimber submitted that the seniority rule should not be applied in relation to the Complainant who is a person with a disability and has a right to reasonable accommodation.

12 Ms Kimber contended that the Respondent labours under a misinterpretation of its obligations under Section 16. It alleges that it requires a work force that are capable of performing all of the duties that they were recruited to undertake in order to function. She dismissed that contention relying on the case of Marie Daly v Nano Nagle School [2015] IEHC 785 , High Court where Noonan J decided as follows:-

•

“The Labour Court noted at the outset that it was the school's position that Section 16 does not require an employer to continue an employee in employment who is not fully capable of undertaking the job that he or she was employed to do. It seems to me that as Counsel for Ms. Daly submitted, the school adhered to this position throughout, up to the commencement of the hearing of this Appeal when it modified its position to a significant degree by conceding that Section 16 may require the stripping out of tasks peripheral to the job. That concession was not made at the hearing before the Labour Court. Thus, the schools position was that the concept of reasonable accommodation and the implementation of appropriate measures as defined in Sub Section 3 and 4 applied only to such measures as would render Ms. Daly capable of fulfilling all the duties of the job. Since no amount of reasonable accommodation or appropriate measures could ever achieve that situation, the school considered itself to have no further obligation to Ms. Daly .

In that regard, I accept Mr. Quinn's submission that this was an erroneous view of Section 16. Were the schools position correct it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated. The definition of “appropriate measures” in Sub Section 4 includes the adaption of both patterns of work in time and distribution of tasks…………. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the Section would fail to achieve the objective for which the legislation was enacted”

13 Ms Kimber contended that the Complainant's right to reasonable accommodation is not lessened by the provisions of Section 35 (1) and/or Section 37. She stated that any derogation from a principle of Equality Law must be construed strictly, in accordance with the requirements of the jurisprudence of the Court of Justice of European Union. There are posts available within the prison service that do not require the Complainant to do the duties which the CMO has said are not suitable for him and in accordance with the Complainant's statutory right to reasonable accommodation, Ms Kimber submitted that it was incumbent on the Respondent to provide him with one of these posts.

Summary of the Respondent's Position

14 Mr Peter Leonard, B.L., instructed by the Chief State Solicitor's Office, on behalf of the Respondent, denied that the Respondent had discriminated against the Complainant on the grounds of disability. He submitted that account must be taken of the physical nature of the duties that a serving prison officer is required to carry out in the course of his or her employment. Mr Leonard submitted that as the requirements of a serving prisoner can at times be onerous and physically exacting, the Respondent has a fundamental requirement that its workforce are capable of performing all duties associated with the role. On that basis the Respondent was entitled to rely on the special derogation provided to the Respondent under Section 37 of the Acts. In any event the Respondent offered reasonable accommodation and alternative employment to the Complainant. In that context, he relied upon the terms of its Accommodation Policy which was established to allow serving prison officers a temporary period of rehabilitation (three months) and was not established to accommodate prison officers who are no longer able to carry out full time duties.

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