Irish Prison Service v Robert Cunninghm

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 29 January 2021
• Neutral Citation: [2021] IECA 19
• Docket Number: RECORD NO: 2020/146
• Court: Court of Appeal (Ireland)
• Date: 29 January 2021

Between

Irish Prison Service

Appellant

and

Robert Cunningham

Respondent

and

The Labour Court

Notice Party

[2021] IECA 19

Faherty J

Collins J

Pilkington J

RECORD NO: 2020/146

THE COURT OF APPEAL

Discrimination – Reasonable accommodation – Jurisdiction – Appellant seeking to appeal against the judgment and order of the High Court – Whether there was no further appeal to the Court of Appeal

Facts: The respondent, Mr Cunningham, a prison officer, brought a claim under the Employment Equality Act 1998 (as amended), asserting that the appellant, the Irish Prison Service, was discriminating against him on grounds of disability and contending that the Prison Service was obliged to afford him reasonable accommodation by giving him duties which did not involve contact with prisoners. Mr Cunningham was successful in that claim before an Adjudication Officer of the Workplace Relations Commission. That ruling (given on 2 February 2017) was then appealed by the Prison Service to the Labour Court. On 17 July 2018 the Labour Court issued its determination, in which it allowed the appeal. Mr Cunningham appealed that determination to the High Court. Mr Cunningham’s appeal was determined by the High Court (Barr J) on 9 June 2020. Barr J allowed the appeal. Barr J ordered that the claim be remitted to the Labour Court to allow it to consider whether, on the evidence, the Prison Service could reasonably accommodate Mr Cunningham, thus allowing him to continue as a prison officer. By notice of appeal of 23 July 2020, the Prison Service appealed against the judgment and order of Barr J. In his respondent’s notice (dated 2 October 2020), Mr Cunningham took issue with the various grounds of appeal but also relied on an additional ground (inter alia) to the effect that the “applicable legislation” provided that there was no further appeal to the Court of Appeal. In light of that contention, the Court of Appeal directed that the issue of jurisdiction be heard as a preliminary issue.

Held by Collins J that the preliminary objection taken by Mr Cunningham to the Court’s jurisdiction to determine the Prison Service’s appeal from the decision of the High Court of 9 June 2020 was without merit and must be rejected. Having had regard to the provisions of Article 34.4.1 of the Constitution, Collins J held that there was a right of appeal to the Court from that decision unless it was the subject of an “exception...prescribed by law”. Collins J held that a long line of Supreme Court authority, and more recent authority from the Court of Appeal, established that any such exception must be clear and unambiguous. Collins J held that the relevant statutory provision – s. 90(1) of the 1998 Act – did not exclude an appeal to the Court. Collins J held that the suggestion that the governing statutory provision was s. 46 of the Workplace Relations Act 2015 – a suggestion wholly at odds with the fact that Mr Cunningham’s own appeal to the High Court was brought pursuant to s. 90(1) – was mistaken. Collins J held that the argument that the amendment to s. 83 of the 1998 Act effected by s. 17 of the National Minimum Wage (Low Pay Commission) Act 2015 operated to exclude the Prison Service’s appeal was also misplaced; that amendment did not affect s. 90(1) of the 1998 Act or somehow substitute s. 46 of the 2015 Act for s. 90(1) as the provision governing appeals to the High Court in claims under the 1998 Act. Collins J held that s. 2 of the European Convention on Human Rights Act 2003 does not provide any basis on which s. 90(1) can be interpreted so as to exclude a right of appeal to the Court. Collins J held that Mr Cunningham’s belated invitation to the Court to declare s. 90(1) incompatible with Article 6(1) of the European Convention on Human Rights could not be entertained and such a declaration would not affect the Prison Service’s entitlement to proceed with its appeal in any event. Collins J held that the Prison Service was therefore entitled to prosecute its appeal.

Collins J held that it appeared appropriate to place a stay on any order for costs pending the determination of the substantive appeal.

Preliminary objection rejected.

No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 29 January 2021

BACKGROUND

1 Before the Court for determination is an issue arising from a preliminary objection made by the Respondent (“ Mr Cunningham”) to the effect that the Court has no jurisdiction to entertain the appeal brought by the Prison Service.

2 The substantive appeal is not before the Court but I must say something about the proceedings and the appeal in order to explain the context in which the issue of this Court's jurisdiction is in controversy.

3 Mr Cunningham is a prison officer. He suffered a number of back injuries in the course of his duties, causing damage to a disc and resulting in him having to undergo a number of operations, most recently in February 2015. It appears that, following that surgery, the Chief Medical Officer advised the Prison Service that Mr Cunningham was unlikely to be able to return to full duties, specifically restraint and control duties. In November 2015, Mr Cunningham was informed by the Prison Service that it would not possible for him to return to duty as a prison officer and it appears that he was given the option of seeking to return as a Prison Administrative and Support Officer (PASO) or otherwise retiring on grounds of ill-health.

4 Mr Cunningham then brought a claim under the Employment Equality Act 1998 (as amended) (“the 1998 Act”), asserting that the Prison Service were discriminating against him on grounds of disability and contending that the Prison Service was obliged to afford him reasonable accommodation by giving him duties which did not involve contact with prisoners.

5 Mr Cunningham was successful in that claim before an Adjudication Officer of the Workplace Relations Commission (WRC). That ruling (given on 2 February 2017) was then appealed by the Prison Service to the Labour Court. On 17 July 2018 the Labour Court issued its Determination, in which it allowed the appeal, ruling that section 37(3) of the 1998 Act provided a complete defence to Mr Cunningham's claim. 1

6 Mr Cunningham appealed that Determination to the High Court. That appeal, on a point of law, was brought pursuant to section 90(1) of the 1998 Act. It will be necessary to refer further to that provision in due course. In any event, Mr Cunningham's appeal was determined by the High Court (Barr J) on 9 June 2020. For the reasons set out in his detailed judgment of that date, 2 Barr J allowed the appeal. The Judge concluded that the Labour Court had erred in its interpretation of section 37(3). Properly construed (so Barr J considered) section 37(3) did not relieve the Prison Service of its obligation under section 16(3) of the 1998 Act to afford reasonable accommodation to employees such as Mr Cunningham, provided that it was not unduly burdensome to do so and provided that the operational capacity of the Prison Service would not be adversely affected. Barr J ordered that the claim be remitted to the Labour Court to allow it to consider whether, on the evidence, the Prison Service could reasonably accommodate Mr Cunningham, thus allowing him to continue as a prison officer.

7 By Notice of Appeal of 23 July 2020, the Prison Service appealed against the judgment and order of Barr J. In his Respondent's Notice (dated 2 October 2020), Mr Cunningham took issue with the various grounds of appeal but also relied on an additional ground ( inter alia) to the effect that the “ applicable legislation” provides that there is no further appeal to the Court of Appeal.

8 In light of that contention, the Court directed that the issue of jurisdiction be heard as a preliminary issue and the parties were directed to deliver written submissions addressing that issue which they duly did. An expedited hearing date was given and the Court has now had the benefit of full oral submissions from Counsel for the parties at the hearing which took place earlier this month.

THE ARGUMENTS

9 Mr Cunningham makes a number of arguments. In summary (and I will refer in more detail to certain aspects of the arguments below), Mr Cunningham argues that the issue of whether or not an appeal lies to this Court falls to be determined by reference to section 46 of the Workplace Relations Act 2015 (“ the 2015 Act”) and it is said that section 46 clearly excludes any such appeal. As I shall explain, the point of conflict between the parties here is not as to the effect of section 46 but as to whether it has any application to this appeal. On Mr Cunningham's own admission, the argument that section 46 applies follows “a circuitous and complex route”. However, the ultimate end-point is said to be clear. Mr Cunningham also contends that section 90(1) of the 1998 Act – which on its face appears to be the governing provision – has become “ redundant” and/or has been “ rendered obsolete” as a result of subsequent statutory amendments.

10 Mr Cunningham also argues that to allow a further appeal from the High Court would be inconsistent with the procedural “ streamlining” intended to be achieved by the 2015 Act and would result in further delay and expense such as would involve an infringement of Mr Cunningham's right to an effective remedy – protected, it is said, by the Constitution, the EU Charter of Fundamental Rights and the European Convention on Human Rights – and would breach his fair trial rights under Article 6(1) of the Convention. As initially presented, the argument made was that these were factors which the Court could and should take into account when approaching the interpretation of the 1998 and 2015 Acts and, it was said, strongly supported Mr Cunningham's position. In her reply, Counsel for Mr Cunningham went further, arguing that, if section 90(1) of ...