Complainant

Respondent

Parties

Kim  Dempsey

Irish Prison Service

Representatives

Ms Kiwana Ennis BL instructed by Ms Anjana Hanratty, Liam Keane & Partners Solicitors

Mr Peter Leonard BL instructed by Jennifer Murray Solicitor, CSSO, Employment Law Section

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054443-001

11/01/2023

The Complainant commenced employment with the Respondent as a prison officer in 2008.

This complaint was received by the Workplace Relations Commission on 11th January 2023.

OUTLINE OF THE FACTS

1.       The Complainant commenced employment with the Respondent as a prison officer in 2008 when she was 20 years of age. On 10 May 2017, in the course of her duties as a prison officer at Midlands Prison, she was the victim of a serious assault by a prisoner during which she suffered multiple injuries including injuries to her right knee and lower back. Since this incident, the Complainant has suffered with chronic and ongoing lower back pain which requires her to undergo regular specialist medical treatment including facet joint injections and nerve root blockage. In order to manage her ongoing symptoms, the Complainant takes medication as required and engages in physiotherapy and pain management treatment.

2.       The Complainant’s medical advice (as per the Respondent’s CMO) is as follows:

a.       She is not medically fit for general prison officer duties.

b.       She requires to work in an office-based capacity without manual duties.

c.       She requires to be accommodated in a location without a long commute.

d.       She will require these accommodations indefinitely.

3.       The Complainant has not returned to work since this incident in May 2017 and has remained on certified sick leave since that time. It is the Complainant’s case that this is due to the failure by the Respondent to make reasonable accommodation.

4.       Whilst on certified sick leave, the Complainant returned to full-time education to acquire the necessary qualification for the role of Work Training Officer Integrated Sentence Management (“WTO”). The Respondent’s Head of HR Directorate, Sean Sullivan (“Mr. Sullivan”), had in fact encouraged her to obtain this qualification as a potential avenue to return to work (although he has subsequently denied that he gave any such encouragement).

5.       After obtaining her qualification, the Complainant was then successful in a competition for a WTO role and was offered a position with effect from 4th June 2021. The relevant competition circular (Circular 36/2019) together with a list of duties and responsibilities attached to the role of WTO is available.

6.       The initial post offered to her was at Mountjoy Prison. This was unsuitable however due to the driving commute and therefore the Complainant was then offered a WTO position at Cloverhill Prison to which she could travel by train making it marginally more suitable.           In fact, the Complainant requires to be accommodated nearer her home at Portarlington, County Laois with a shorter commute.  

7.       Regardless of the commute however, the Complainant has not been permitted to commence the WTO role in Cloverhill. As the Complainant has not been able to take up her WTO role in Cloverhill, this role has been filled on a continuing temporary basis by prison officers who are not qualified as WTO (ISM).

8.       The duties attaching to the role of WTO are in dispute in this case. As per the WTO job description and the Complainant’s understanding from speaking to her colleagues who perform the role, it is primarily office based. The Respondent maintains however that is not the case. It is primarily on this basis that the Respondent has refused to accommodate the Complainant in a return to work as a WTO.

9.       It is accepted by the Complainant that in understaffed prisons, such as Cloverhill, some WTO’s do not perform the WTO role full time due to having to fill in for staff shortages elsewhere in the prison – a practice referred to as “RPM.” This is the case with the second WTO position in Cloverhill to which the Complainant has been appointed. Specifically, the Complainant has been verbally informed by the Governor of Cloverhill that as second WTO in Cloverhill, she would be required to work six to seven days per fortnight in regular prison officer duties involving inter alia: -

a.       being deployed to any post in the prison in the event of staff shortage.

b.       covering prison officer duties on dinner and tea guard duty.

10.   The Respondent has relied on this requirement – which arises in respect of the second WTO in Cloverhill (due to staff shortages) – to prevent the Complainant from returning to work as a WTO role either there or in any other location in the country.

11.   However, it is the Complainant’s position that (a) full time WTO roles are available in various prisons throughout the country such as the Midlands and Portlaoise Prisons and (b) these full-time roles do not in fact entail carrying out general prison officer duties and if they do, this arises only exceptionally and therefore any such requirement could be dealt with by way of a reasonable accommodation.

12.   Regarding availability of full-time roles, the Midlands Prison, which already has four full time WTO’s, has recently advertised two more full time positions. The advertisement for this position, together with a Job Description of WTO (ISM) is available. Although such roles arise, the Respondent does not inform the Complainant of same (and this issue is addressed in more detail below).

13.   Regarding the duties carried out by full time WTO’s, the Respondent maintains that in general (as opposed to only in prisons that are short-staffed) the role is not office-based as there is a daily requirement to engage directly and face to face with prisoners often in the general prison accommodation areas. In addition, it is claimed, that in the case of staff shortages, WTO officers are required to cover normal prison officer security and supervision duties.

14.   It should be noted however that these assertions by the Respondent regarding the duties of a WTO are made without any supporting facts, statistics or documentation nor is there any reference to such duties in the job description.

15.   In any event, however, even if the role of full time WTO were not primarily office based (and this is in dispute), the Respondent has never genuinely considered whether reasonable accommodation could be made to the Complainant to perform the WTO role by way of making the necessary adjustments to ensure it is office based. This appears to be premised on the Respondent’s position that reasonable accommodations can only be made for a limited period of time. The Respondent’s Accommodations (Rehabilitative/Restricted Duties) Policy from which it can be seen that only short-term accommodations are contemplated. Clause 2.4 specifically provides as follows:

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

16.   However, there is no lawful basis for limiting the period for which reasonable accommodation would be made in this manner by only providing for extended periods of accommodation in “exceptional circumstances.” The Respondent’s policy is therefore not in compliance with its legal obligations. This in turn undermines the Respondent’s ability to consider the issue of reasonable accommodation in a legally compliant manner as evidenced by its treatment of the Complainant.

17.   In this respect, a purported case management meeting occurred on 16th January 2023 which the Complainant was not permitted to attend. By letter of 10th February 2023, the outcome of this case conference was communicated to the Complainant’s solicitors, which letter stated:

“At this case conference, all Prison Officer and WTO roles were assessed in line with the CMO’s advice. I regret to say that each roll carried an unacceptable level of risk, considering the CMO advice, and no suitable WTO or Prison Officer role was identified in that prison.”

18.   The letter further stated that no other suitable roles existed within the Dublin region and that the same risks would apply to any WTO position in the Midlands Prison as exist with her in Cloverhill.

19.   None of the foregoing assertions were supported by any evidence.

20.   In a further sweeping and unsubstantiated assertion, the letter stated:

“Furthermore, the case conference concluded that to modify any of the relevant roles to the extent that they would be safe for Ms Doyle to undertake, would render those positions either unworkable or unnecessary.”

21.   The letter then stated that the “only options” that could be by the Respondent were the following:

a.       Re-grading to a Prison Administration Staff Officer (“PASO”).

b.       Ill health retirement.

22.   Both “options” howeverrequire the Complainant to terminate her employment with the Respondent and therefore do not amount to reasonable accommodation. The reference to re-grading as a PASO is also disingenuous. The Respondent confirmed that this would require an application to DEPR under the Civil Service Re-grading process which is not a process over which the Respondent has any control and which it confirmed is only granted in “exceptional circumstances.” Even if the Complainant were to take this “option” there would be no guarantee that she would be re-graded as a PASO or that she would secure employment as such. Further, doing so, would result in a significant reduction in her salary.

23.   In respect to ill-health retirement, the relevant Civil Service Circular 22/2007 Ill-Health Retirement from the Civil Service is available.

24.   As a further demonstration of the Respondent’s obstructive treatment of the Complainant, it has failed to notify her of upcoming competitions as they arise despite being repeatedly requested by the Complainant to do so. Initially, the Respondent sought to explain its failure on the basis that the Complainant had not submitted a consent to contact form. This is not credible however as firstly, the Respondent had not sent any such form to the Complainant and secondly, the Respondent was in regular contact with the Complainant about other matters but would not send her notices of competitions. By email of 19th January 2022 on the matter, Mr. Sullivan noted he was awaiting clarification on the issue. He stated that it was his understanding that unless the Complainant had opted out, the HR Office was still obliged to send all competitions, circulars and advertisements to her home address. It is perhaps surprising that the Head of HR Directorate did not actually know the position or could explain why the Complainant had been left out of such communications.

25.   Despite the Complainant’s continued requests to be notified of competitions she did not receive notice of the recent WTO competition for the Midlands Prison referred to above.

26.   When the Complainant found out about the recent WTO competition, she asked Mr. Sullivan whether she could be accommodated by being allocated to one of these two roles. By email of 15th September 2023, he replied as follows:

“You enquired on Tuesday as to whether you were eligible to apply for the current WTO ISM competition.

I see from the circular that: ‘Grades equivalent to the Work Training Officer (i.e. have the same maximum pay scale or higher) are not eligible to compete in this competition.’  As you are a WTO, you are not eligible to apply.”

27.   This response from Mr. Sullivan demonstrates a clear and manifest failure to provide reasonable accommodation.

28.   It can be seen from the most recent correspondence from the Respondent that pressure is being applied to force the Complainant to take one of the two “options” as identified by the Respondent in its 10th February 2023 letter.

29.   A section 76 request for information was sent to the Respondent on 25th September 2023 seeking the following information:

a.       Copies of all competitions, vacancies, promotions and training opportunities in the IPS for all regions that have arisen since May 2017.

b.       Confirmation of whether or not same were notified to the Complainant and if so, specify when and by what manner.

c.       Full details of all WTO ISM Officer vacancies in the regions of Dublin, Midlands and Munster that have occurred since 4th June 2021 breaking this down region by region and specifying the date when each vacancy arose.

d.       In prisons where are not short-staffed and do not require WTO’s to carry out RMP (such as Midlands), the following information (accompanied by the relevant supporting documentation) in respect to each full time WTO:

                                                               i.      The number of hours worked per year during core hours involving manual duties.

                                                             ii.      The number of hours worked per year during core hours on general prison officer duties in the general prisoner accommodation.

                                                           iii.      The number of hours worked per year during core hours on dinner guard or tea guard duty.

e.       The number of critical incidents that have occurred throughout all regions since 4th June 2021 during which a WTO was directly involved and provide details of all such incidents.

f.        The number of critical incidents that have occurred throughout all regions since June 2021 during which a WTO acted as a first responder and provide details of all such incidents.

g.       The number of vacancies in the key rooms, visit rooms and/or control rooms that have arisen in all regions since June 2017.

h.       Full details of all positions for which the Complainant was assessed at the Case Conference held on 16th January 2023 identifying, in each individual case, the basis on which the position in question was deemed unsuitable.

30.   To date, no response has been received.

31.   The Complainant earned approximately €55,000 per annum and a further €13,000 in compulsory overtime when she worked as a prison officer. As a WTO, the Complainant would be on an annual salary of approximately €58,000 with mandatory overtime to the value of approximately €19,000. She was in receipt of Temporary Rehabilitation Remuneration (“TRR”) in the sum of €690 per month from the Respondent, which ceased on the 13th March 2023. The Complainant is no longer in receipt of any payments from the Respondent.

LEGAL SUBMISSIONS

The Employment Equality Acts 1998 to 2021

32.   Section 6(1)of the Employment Equality Acts 1998 to 2021 (“the EEA”) defines discrimination as follows:

“…discrimination shall be taken to occur where

(a)    a person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which–

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future,

(iv)               is imputed to the person concerned.

(b)    …”

33.   Section 6(2) sets out the discriminatory grounds and s.6(2)(g)defines the disability ground as being where one person is a person with a disability and the other either is not or is a person with a different disability.

34.   Disability is defined in s.2 as:

“’Disability’ means -

(a)    the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body. 

(b)    the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)     the malfunction, malformation or disfigurement of a part of a person’s body,

(d)    a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)    a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

35.   Section 16 provides that nothing in the EEA shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position or provide training or experience to an individual in relation to a position if the individual will not undertake the duties attached to that position or will not accept the conditions under which those duties are to be performed or is no longer fully competent and available to undertake the duties having regard to the conditions under which those duties are to be performed.

36.   Section 16(3) provides however:

“(a) For the purposes of this Act, a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(i)                  to have access to employment,

(ii)                to participate or advance in employment, or

(iii)               to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular of -

(i)                  the financial and other costs entailed,

(ii)                the scale and financial resources of the employer’s business, and

(iii)               the possibility of obtaining public funding or other assistance.”

37.   For the purposes of s.16(3), a person with a disability is to be considered fully competent and capable to undertake the duties attached to a role if the person could do the duties with the assistance of special treatment or facilities. Section16(3) has been interpreted by the Labour Court (for example in Humphries v. Westwood Fitness Club [2004] ELR 296) as obligating an employer to do the following when considering whether an employee is fully competent and capable:

a.       Conduct a proper assessment of the employee’s disability before making a decision as to whether reasonable accommodation can be made.

b.       Having assessed the nature and extent of the disability, to make an informed decision as to whether the individual, with the aid of special treatment or facilities, can be considered fully competent to do the work.

38.   The Supreme Court in Nano Nagle v. Daly [2019] ELR 221 confirmed (at para 84) that s.16(3) provided for a “mandatory primary duty” on an employer and that the employer therefore “shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden.”

39.   Regarding the issue of consultation with the employee (as found in Humphries to be a requirement of an adequate consideration of the reasonable accommodation question), although the Supreme Court found that there was no mandatory duty of consultation with the employee in each and every case provided for at s.16(3), it added (at para 105) that “as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.”

40.   In respect to the prison service, ss. 37(2) and (3) of the EEA provide;

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

41.   It is unclear if the Respondent will attempt to rely on these provisions in this case as they did in Cunningham v. Irish Prison Service [2020] IEHC 282. That case concerned a claim by a prison officer under the Employment Equality Acts in respect to a failure to reasonably accommodate on the basis that the employee was certified unfit to carry out restraint and control duties in the medium or long term. As with the case herein, the employee was only offered the opportunity to resign and apply for employment as a PASO or to apply for ill-health retirement. In that case, the Respondent sought to rely on s.37(3) to argue that it was not obliged to provide reasonable accommodation to the employee. This argument was unsuccessful in the WRC but successful on the Respondent’s appeal to the Labour Court. On appeal to the Hight Court however, the Labour Court decision was overturned on the basis that the Labour Court had erred by failing to hear evidence and make findings of fact. In addressing the Respondent’s reliance on s.37(3), Barr J rejected the general claim that s.37(3) allowed the Respondent to “self-certify” an employee was incapable of performing the range of functions that he may be called upon to do as a prison officer due to the fact that he could not perform control and restraint duties and that as such the Respondent was relieved from an obligation to make reasonable accommodation. At paragraph 70, he stated:

“While the court can see the force in the argument put forward on behalf of the respondent, that control and restraint is an important requirement generally within the Prison Service; given the size of the service and the range of duties performed by prison officers, there may be duties which could be undertaken by the appellant within the role of prison officer, which would not involve control and restraint, yet which would not adversely affect the operational capacity of the Prison Service.”

42.   At paragraphs 79 to 81, Barr J. stated the following:

“79. Accordingly, I find that the Labour Court was wrong in law to interpret s.37.3 in the way that it did. The subsection merely provides that it is an occupational requirement that an employee in the Prison Service be fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the Prison Service may be preserved. However, the correct interpretation of the subsection does not relieve the employer of the obligation to attempt to make reasonable accommodation for the person if it is not unduly burdensome for them to do so and if having done so, the operational capacity of the service is not adversely affected.

80. I am satisfied that such an interpretation is in accordance with the terms and objectives of both the Directive and the CRPD. It is appropriate that if possible, the Act should be interpreted in a way that is consistent with the provisions of EU law.

81. Furthermore, I am satisfied that the use of the pronoun ‘they’ in s.37(3), makes it clear that what is being referred to is the competence of the particular person to perform the range of functions that they may be called upon to perform as part of the relevant emergency service. As noted earlier, in a larger organisation, different duties involving different levels of physical capacity, will be performed by different operatives at the same level, e.g. some Gardai will perform active duties in the community, whereas others will perform specialised investigations from an office. The section makes it clear that there is no ‘one size fits all’ requirement which must be attained by all the operatives within a particular emergency service. It is necessary to look at the range of duties that a particular person may have to perform in his or her role within the emergency service concerned. (Emphasis added).

43.    Moreover, at paragraph 63, Barr J. made the following point in respect to the changing landscape regarding accommodating persons with disabilities:

“It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgements of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act. The court must interpret s.37.3 of the 1998 Act in light of Art. 27 of CRPD to which both the EU and Ireland are signatories.”

44.   In respect to the extent of the duty on an employer to reasonably accommodate an employee with a disability, in XXXX v. HR Rail SA C-485/20(10th February 2022), the Court of Justice of the European Union (“the CJEU”) found that where a worker becomes permanently incapable of remaining in his or her job because of the onset of a disability, the concept of reasonable accommodation required assignment to another job for which the worker has the necessary competence, capability and availability unless that imposed a disproportionate burden. This obligation arising where there was at least one vacancy that the worker was capable of holding.

45.   Furthermore, the United Nations Convention on the Rights of Persons with Disabilities “(UNCRPD”) sets out as its purpose at Article 1:

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

46.   Ireland signed the UNCRPD in 2007 and ratified it in March 2018.

The Burden of Proof

1.       Section 85A of the EEA provides that where a complainant in discrimination proceedings establishes facts from which it may be presumed that there has been discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

1. In Mitchell v. Southern Health Board[2001] ELR 201 the Labour Court discussed the issue of the burden of proof in respect to a claim of gender discrimination. However, on the basis of s.85A, the principles stated therein now apply equally to all cases of discrimination.  The Labour Court stated the following:

“It is necessary, however, to consider the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the complainant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the appellant to prove that there was no infringement of the principle of equal treatment.”

3.       In Cork City Council v. McCarthy EDA0821 the Labour Court made the following comments on this requirement:

“The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

4.       In addressing the quality of evidence that is required to rebut a presumption of discrimination, the Labour Court in Nevins and Others v. Portroe Stevedores[2005] 16 ELR 282, adopted the position of the Employment Appeals Tribunal for England and Wales in Barton v. Investec Henderson Crosthwaite[2003] IRLR 322 which found that since the facts necessary to prove an explanation would usually be in the possession of the employer, a tribunal should normally expect “cogent evidence” to discharge that burden [2005] 16 ELR 282, The Labour Court noted that discrimination is “usually covert and often rooted in the subconscious of the discriminator” which meant therefore that “mere denials of discriminatory motive, in the absence of independent corroboration, must be approached with caution by the court.” The Labour Court also found that “the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is contributing cause in the sense of being a ‘significant influence.’”  

5.       The Labour Court has specifically recognised that subconscious bias can arise when dealing with the ground of disability. In addressing this fact, the Labour Court warned as follows in A Government Department v. An Employee EDA062:

“The requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they suffer from a disability per se, but they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denial of discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

6.       Therefore, it is clear from the foregoing that a mere denial of discriminatory motive must be approached with caution in the absence of independent corroboration.

CONCLUSION

1.       The Complainant has a disability and has been prevented from returning to work by the Respondent because of her disability. It is submitted that in the circumstances, she has established facts of sufficient significance from which an inference of discrimination can clearly be drawn and therefore she has made out a prima facie case of discrimination on the disability ground in particular by way of the failure by the Respondent to make reasonable accommodation to facilitate her return to work.

2.      Because of her disability, the Respondent requalified as a WTO. She was successfully appointed to a WTO role but has not been permitted to commence in that role. The Respondent claims that all WTO roles incorporate general prison officer duties. This is a generalised unsubstantiated claim however that is disputed by the Complainant and is not supported by any evidence or statistics. It is submitted that the Respondent should not be permitted to rely on unsubstantiated generalisations and instead should be required to adduce “cogent evidence” to support its position and further that the WRC should be alert to the “covert” and “subconscious” nature of discrimination when assessing the Respondent’s position.

3.       In any event, even if the WTO role did involve general prison officer duties, the Respondent has never genuinely considered whether reasonable accommodation could be made to the WTO role in order to facilitate the Complainant’s return to work. As noted by Barr J. in Cunningham, there is no one size fits all requirement which must be attained by an employee within a particular emergency service. The Respondent is required to look at “the range of duties” that the Complainant may have to perform as WTO to assess if she could be accommodated. This step has clearly not been taken in this case.

4.       Moreover, as per XXXX v. HR Rail the Respondent is also under an obligation to consider assigning the Complainant to some other non-manual role (such as key room, visit rooms, control room duty) as exist within the organisation. Again, it is failed in this respect.

5.       In addition, the Respondent’s lack of bona fides in dealing with the Complainant is evidenced by the foregoing:

a.       Not permitting her to attend the purported case conference on 16th January 2023.

b.       Not informing her of her competitions and vacancies that have arisen including the recent WTO vacancies in the Midlands Prison.

c.       Seeking to rely on a technicality to avoid reasonably accommodating the Complainant in one of the new WTO roles in the Midlands Prison.

d.       Seeking to force the Complainant to resign by way of ill health retirement or re-grading to a PASO.

6.       Furthermore, the Respondent’s Accommodation Policy, which provides for short term accommodations only, is clearly unlawful.

7.       In circumstances where the Respondent fails to reply to the s.76 request for information, the relevant inferences should also be drawn to the effect that the Respondent cannot substantiate its position regarding its ongoing refusal to accommodate the Complainant.

8.       In Nano Nagle the Supreme Court confirmed that the duty on an employer to make reasonable accommodation is “a primary mandatory duty.” Further, as noted by Barr J in Cunningham there has been a “paradigm shift in the way disability is to be viewed in European and Irish law.” It is apparent that the Respondent is not yet in step with its legal obligations or this paradigm shift.

9.       Based on the foregoing, it is submitted that the Complainant should succeed in her claim herein.

10.   The Complainant reserves the right to respond to the submissions made on behalf of the Respondent in circumstances where to date neither the factual nor legal basis for the continued refusal to reasonably accommodate the Complainant has been coherently communicated to her.

11.   The Complainant reserves the right to make further and other submissions including oral and/or written submissions on the facts and the law either at the hearing of the matter or subsequently thereto.

1.       It is the case that, Ms Dempsey, who has been a serving Prison Officer since 2008, suffered very serious injuries when she was the subject of an assault in the course of her duties while working as a Prison Officer on 10th May 2017. It is also accepted that Ms Dempsey has not returned to work since that incident.

2.       While on sick leave the Complainant was promoted, following a regional competition, to the role of Work Training Officer (WTO) at Mountjoy Prison on 4th June 2021 and upon achieving a promotion sought a transfer to various locations ultimately transferring to Cloverhill on 9th April 2022; However, due to her medical condition, the Complainant has been unable to return to duty and serve in the capacity of her promoted role at any time.

3.       While it is common case between the parties that it is no longer possible for Ms Dempsey to return to full-time routine prison officer work, she believes that it would be possible for her to return to work if provided with reasonable accommodation.

4.       However, having considered Ms Dempsey’s case in accordance with their legal obligations pursuant to the Employment Equality Act 1998 as amended, and having looked at how reasonable accommodation could be applied to the various positions that were potentially available to her, the IPS regretfully concluded that it was not possible to re-employ Ms Dempsey as a WTO/Prison Officer, as all positions involved prisoner contact or the potential for prisoner contact in conflict type scenarios.

5.       The IPS specifically convened a conference of senior management to consider Ms Dempsey’s case and explore whether it was possible, given her established medical condition, to return to work. The case conference team carried out a comprehensive assessment of the range of options which would allow Ms Dempsey return to work as a WTO, or in another Prison Officer role. This included the position highlighted by the Complainant. Unfortunately, when the requirements of these roles - whether situated at Cloverhill, or other prisons within the IPS cohort - were assessed in the context of the medical information which had been provided by the CMO, it was concluded that Ms Dempsey was not medically capable of returning to a WTO/Prison Officer role within the IPS.

6.       Accordingly, it was concluded at the case conference concluded that the only possible options available to Ms Dempsey to potentially re-grade to a clerical office based role, or in the alternative she could apply for Ill Health Retirement.

Employer’s Legal Obligation.

7.       It is strongly submitted on behalf of the IPS that it has fully complied with its legal obligations to Ms Dempsey pursuant to the Employment Equality Act 1998 as amended, and that it has actively attempted to find a solution to her workplace difficulties.

8.       The starting point in assessing Ms Dempsey’s suitability for a return to work is to establish - in line with the decision in Humphries v Westwood Fitness Club [2004] ELR 296 - a full understanding of her medical condition and prognosis for that medical condition going forward. It is submitted that the IPS has been entirely compliant with this requirement. She has been repeatedly referred to the CMO and all decisions taken in relation to Ms Dempsey’s return to work have been based on the detailed medical reports which have been prepared by the CMO.

Reasonable Accommodation

9.       In Cunningham v Irish Prison Service IEHC 2020 Mr Justice Barr addressed the requirement to provide reasonable accommodation within the context of the Prison Service holding as follows: 

“…If it can be established that notwithstanding his disability a person is capable of performing the functions that they may be called upon to perform in their particular role within the Prison Service and that that can be done without adversely affecting the operational capacity of the Prison Service, it seems to me that the requirements of the Directive mandate that he be given the reasonable accommodation, if not unduly burdensome and thereby be permitted to continue in employment.

10.   Mr Justice Barr’s conclusions were subsequently confirmed by the CJEU in XX v Vangla (Case  C -795 / 19) This Estonian case also concerned a Prison Officer who was deemed not to have a sufficient level of hearing capacity in order to continue in the role. The ECJ held that Directive does not require prison services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of the service.

11.   However, the Court then went on to say, “it is still necessary” to establish if the requirement is proportionate and “appropriate for obtaining those objectives and ensure that it does not go beyond what is necessary to attain them.” Ultimately the Court concluded at paragraph 53. “In light of the foregoing answer to the question referred is that Article 2(2)(a), Article 4(1) and Article 5 of Directive 2000/78 must be interpreted as precluding national legislation which imposes an absolute bar to the continued employment of a prison officer whose auditory acuity does not meet the minimum standards of sound perception prescribed by that legislation, without allowing it to be ascertained whether the officer is capable of fulfilling those duties, where appropriate, after the adoption of reasonable accommodation measures for the purposes of Article 5 of that Directive.”

12.   In Nano Nagle School v Daly [2019] 3 I.R. 369 the Supreme Court in interpreting the obligation to provide reasonable accommodation in accordance with section 16(3) of the 1998 Act (as amended) stated that the test was one of “reasonableness and proportionality”. MacMenamin J. stated that “an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person’s employment reasonable accommodation in the job, or whether, in reality what is sought is an entirely different job.”

13.   It is strongly submitted that the IPS has, in accordance with their legal obligation, fully engaged with the Complainant and has extensively explored the possibility of her returning to work. The interaction which has taken place between the Complainant and the Respondent in this regard is reflected in the following extracts taken from correspondence exchanged between the parties.

Correspondence

14.   On 3rd October 2022 Mr Sean Sullivan of the IPS HR Directorate responded to a Letter from the Complainant’s Solicitor dated 13th September 2022. In his letter he thanked the Solicitor for providing “very precise details of the measures that Ms Doyle (Dempsey) wishes to have considered.” He also agreed that a case conference to consider her circumstances would be beneficial. The following is a lengthy extract from Mr Sullivan’s letter as it gives an insight into the level of engagement with Ms Dempsey’s case undertaken by the IPS. He said:

“There is nobody disputing that Ms Doyle has been through a horrendous ordeal as a result of the injury she sustained. …. I know that she has worked very hard to achieve that same goal (return to work). I also know that (as stated in your letter) she wants to ensure that she does so in a manner that is safe, without a risk of aggravating her injuries. I can assure you that that is exactly the motivation of the officials who have been assisting her. ….. The motivation has always been to ensure that Ms Doyle returns to work when medically fit to do so – and, if necessary, with whatever workplace modifications are reasonable to provide.

….The role of WTO (ISM) is not an office/desk-based role. It is neither entirely nor primarily office/desk based. There is a daily requirement for WTO (ISM) Officers to engage directly and face to face with prisoners. Much of this engagement is conducted in the general prisoner accommodation areas. Furthermore, when required, due to the pressure of conflicting demands on our resources, WTO (ISM) Officers are required to cover normal prison officer duties and roles. As I have also explained to Ms Doyle, the role of WTO (ISM) was described to the CMO’s Office as a desk role erroneously. This was included in a CMO referral by a member of this Directorate at Ms Doyle’s suggestion. The accuracy of Ms Doyle’s suggestion should have been checked at that time. The fact that this prompted advice from the CMO’s Office where it was described as a desk-based position does not overwrite the properly informed, and therefore, more accurate advice that was subsequently received.

It is certainly the case that the fuller picture needs to be considered, but in most cases, you would have to accept, the most recent CMO advice is the one to be relied upon. It is open to the Doctor to restate the previous advice, or refer back to advice previously given, if they wish. I can assure you that the IPS fully considers all requests for reasonable accommodations, not just those that are encompassed by the Accommodations (Rehabilitative Restricted duties) policy.

You state in your correspondence that Ms Doyle has been ‘deemed fully competent and capable of undertaking the range of functions that she may be called upon to perform as WTO (ISM) and as a first responder, and therefore there is no question that any reasonable accommodations for restricted duties would adversely affect the operation capacity of the IPS’ but go on to state that Ms Doyle needs to be engaged in an entirely office-based position.

I would be grateful if you could clarify this statement as Ms Doyle cannot be a first responder if she is unable to perform physical or manual tasks in the general prisoner accommodation areas. Ms Doyle informed me when I spoke to her last that she had received a personal letter from a Doctor in the CMO’s Office which contradicted the advice given to the IPS. She offered to share that letter with me. I would be obliged if she could send me a copy of that letter as a matter of urgency. As you will appreciate, this is very serious matter and one which I will intend to now raise with the Chief Medical Officer, Dr Tom O’Connell.

15.   The Complainant’s Solicitor replied on 12th October 2022 stating:

“If, as you say, the CMO was mistaken as to the true nature of the role and the tasks that Mrs. Doyle will be called upon to fulfil when assessing her fitness in the past, then the only solution is to carry out a new assessment of Ms Doyle’s fitness in the context of the correct nature of the role and the precise tasks that she will be called upon to fulfil on a daily basis.”

The letter continued.

For your information, we enclose herewith a complete list of these medical reports, including the authors and dates. You should note that the last two reports listed, namely the reports of Dr. Barry Warde, Consultant Anaesthetist and Pain Specialist dated the 20th July 2022 and Prof. Donncha F. O’Brien, Consultant Neurosurgeon dated the 22nd August 2022 have not been considered by the CMO, as both reports post-date the last CMO assessment by Dr. Renee Moloney, Occupational Health Physician on the 8th April 2022. This is an additional reason why a new CMO assessment is required.

16.   Ms Dempsey was subsequently re-assessed by the CMO on 29th November 2022  who reported back on the 8th December 2022. In a very comprehensive report the CMO made inter alia the following findings.

         “ 3)Ms Dempsey is not medically fit for regular prison officer duties.

4) Ms Dempsey is medically unfit for the role of WTO (ISM) in Cloverhill Prison which would involve working 6/7 days every fortnight in a regular prison officer role with manual duties.

5)Ms Dempsey is medically fit to work in a WTO (ISM) role that is solely office based with no regular prison officer duties and little or no risk of her being involved in a physical conflict situation.

6)Ms Dempsey is medically fit to act as a First Responder as part of a team but is not fit to engage in the more physical aspects of the role such as control and restraint.”

Following receipt of the CMO’s advice a conference attended by Senior Management  was convened on 16th January 2023 at Cloverhill Prison to discuss Ms Dempsey’s case. The purpose of the case conference was “to examine the options available to facilitate a return to work for WTO Dempsey in light of the most recent occupational health report provided by the CMO issued on 8th December 2022.” In attendance were:

(i)                  Governor Paul Gibney Cloverhill Prison,

(ii)                Governor Mary Leydon HR Workforce Planning,

(iii)               Sean Sullivan Personnel Officer

(iv)               Colette Mulvey AP HR Attendance Management

(v)                 Aileen Orme HEO HR Attendance Management

(vi)               Kevin Cooke AP HR Directorate

17.   In the course of their discussions the conference examined the suitability of the following Prison Officer roles and status.

·       1 A Division Assists Prisoner contact

·       2 B Division Assists Prisoner contact

·       3 C Division Assists Prisoner contact

·       4 D Division Assists Prisoner contact

·       5 E Division Assists Prisoner contact

·       6 Class Officers Prisoner contact

·       7 Console Room Used as an accommodations post

·       8 Doctor's Parade Prisoner contact

·       9 Drug Programme Prisoner contact

·       10 Kit Changes Prisoner contact

·       11 Library Prisoner contact

·       12 Main Gate Used as an accommodations post

·       13 OC Keys & Censor, Kardex, Circle & Records Prisoner contact

·       14 Probation Parade-In Reach Support- Prisoner welfare Prisoner contact

·       15 Reception Prisoner contact

·       16 School Prisoner contact

·       17 Special Visits Prisoner contact

·       18 Visitors Waiting Room Not available every day. Has an element of prisoner contact outside this core function eg assist a landing 

·       19 Visits & Reliefs- Videolink/ Prof. Visits Videolink Prisoner contact

·       20 A Division NG Prisoner contact

·       21 B Division NG Prisoner contact

·       22 C Division NG Prisoner contact

·       23 Console NG Used as an accommodations post.

·       24 Console/Reliefs NG Has potential to be redeployed for night escort duty and prisoner contact

·       25 D 1 NG Prisoner contact

·       26 D 2 NG Prisoner contact

·       27 E Division NG Prisoner contact

·       28 Main Gate/Reliefs NG Prisoner contact

·       29 OC Keys NG Routinely redeployed to conduct night duty escort and assist with prisoners on committal

·       30 Reception (Monday to Friday nights only) Nights only roster.

·       31 Library I/C Prisoner contact. First Responder Post.

·       32 Main Gate I/C Prisoner contact

·       33 Medical Filing Prisoner contact. First Responder Post.

·       34 Prisoner Telephones Prisoner contact. Outside this core function eg assist a landing. Routinely redeployed.

·       35 Reception Prisoner contact

·       36 Tuck Shop Prisoner contact. Outside this core function eg assist a landing. First Responder Post.

·       37 Detail First Responder Post.

18.   On 10th February 2023 Ms Colette Mulvey of the IPS Human Resources Directorate wrote to the Complainant’s Solicitor advising her of the outcome of the case conference. The following extract is again a lengthy one but, it is respectfully submitted, gives a clear insight into the comprehensive assessment which was carried out by the IPS:

“In order to properly inform our considerations, a CMO appointment was arranged for Ms Doyle. In advance of this appointment, all information provided by Ms Doyle, and your correspondence, was provided to the CMO along with details of the role of WTO (ISM) in the IPS. Having considered the medical and role-related information provided, and following the consultation with Ms. Doyle, the CMO issued their occupational health advice dated 8 December 2022, which was issued toMs Doyle.

The CMO advice is detailed and comprehensive. The CMO advice gives some clarity with respect to Ms Doyle’s ability to undertake her role as well as providing advice with respect to  her ability to undertake roles within the IPS generally. Specifically, it states that Ms Doyle is unfit for the roles of WTO (ISM), or indeed the role of Prison Officer. The CMO advises that Ms Doyle is fit for sedentary office type jobs where there is ‘no or minimal risk (in as much as it can be guaranteed) of her being involved in a physical confrontational situation’. While a number of other limitations are mentioned in relation to rostering, travelling, part-time work, overtime etc., the first step for IPS management was to assess if and/or how Ms Dempsey could be safely accommodated in the workplace.

A case conference was convened and was held on 16 January 2023 in Cloverhill Prison. The case conference was attended by the HR Governor of Cloverhill Prison and representatives from the Attendance Management and Workforce Planning Sections of the Human Resources Directorate. At this case conference, all Prison Officer and WTO roles were assessed in line with the CMO’s advice. I regret to say that each role carried an unacceptable level of risk, considering the CMO advice, and no suitable WTO or Prison Officer role was identified in that prison. As Ms. Doyle had been promoted to the WTO role from a panel restricted to the Dublin region, case conference attendees considered whether other suitable roles were available in the Dublin region. Again, regrettably, none could be identified.

Despite being specifically ruled out as a role suitable for Ms. Dempsey, as Ms. Dempsey requested that the IPS consider a WTO (ISM) position in the Midlands Prison, we also considered this option but it was confirmed that the same risks pertain to that position as to the role in Cloverhill; specifically, it would not satisfy the recommendations of the CMO report and would involve prisoner contact and a potential for involvement in conflict situations. Furthermore, the case conference concluded that to modify any of the relevant roles to the extent that they would be safe for Ms Doyle to undertake, would render those positions either unworkable or unnecessary.

As a result, the only options I can see for Ms Doyle to consider are:

• Regrading.

Ms. Doyle can request that an application be made on her behalf to DPER under the Civil Service Regrading process to re-grade to a general civil service grade or a prison administration grade. It should be noted that such requests are not within the control of the IPS and we understand that they are only granted in exceptional circumstances.

·       Ill-Health Retirement.

Alternatively, Ms Dempsey may wish to consider applying to retire on ill-health grounds based on the CMO advice that she is medically unfit to undertake the duties of a WTO or a Prison Officer.

RE-GRADING

1.       In the recent CJEU case HR Rail SA Case C-485/20 it was suggested that the provision of an entirely separate (but suitable) job could satisfy the requirement to provide reasonable accommodation. In the circumstances of that case the Court said at paragraph 69:

“..where a worker becomes permanently unfit to hold his or her post because of the onset of a disability, his or her reassignment to another post is likely to constitute an appropriate measure in the context of reasonable accommodation within the meaning of art 5 of that Directive.”

2.       Accordingly, it is respectfully submitted that facilitating Ms Dempsey with a move to another post such as a PASO role, could constitute reasonable accommodation.

Conclusion

Accordingly for the reasons set out above it is submitted that Ms Dempsey’s claim that the IPS are in breach of the Employment Equality Act 1998 (as amended) in not facilitating her return to work is not well founded.

The complaint form submitted by Ms Dempsey reads as follows:

Mrs. Dempsey has been employed by the Irish Prison Service (IPS) since 2008. On the 10th May 2017, whilst in the course of her duties as a Prison Officer, she was the victim of a serious assault by a prisoner. In the course of this incident on duty (IOD) Mrs. Dempsey suffered multiple injuries, including injuries to her right knee and lower back. Ever since this incident on duty Mrs. Dempsey has suffered with chronic and ongoing lower back condition, which requires her to undergo regular specialist medical interventional treatment, including facet joint injections and nerve root blockage. In order to manage her ongoing symptoms Mrs. Dempsey takes medication as required and engages in physiotherapy and pain management treatment. Mrs. Dempsey has been on certified IOD sick leave since the assault on duty in May of 2017. Mrs. Dempsey is anxious to return to work in a capacity and subject to such accommodations as she has been deemed medically fit for. Mrs. Dempsey has been advised that she is not medically fit for manual duties in the general prisoner accommodation as such manual duties may acerbate her back condition. The medical advice has been that she should return to work in an exclusively office-based capacity. Whilst on IOD sick leave Mrs. Dempsey returned to full-time education to acquire the necessary qualification for the role of Work Training Officer (WTO) Integrated Sentence Management (ISM). Mrs. Dempsey was officially promoted to WTO (ISM) with effect from the 4th June 2021 but has to date not been able to return to work due the refusal by the IPS to facilitation reasonable accommodations as have been medically advised. Medical practitioners have advised that on medical grounds Mrs. Dempsey will require accommodations in the workplace for an indefinite period to facilitate her return to work. The medical advice has been that Mrs. Dempsey is not medically fit to be involved in regular Prison Officer duties, and that on health ground she is only medically fit to return to an exclusively office-based capacity without manual duties. In breach of the employment equality laws the IPS has neglected or refused to facilitate Mrs. Dempsey with such reasonable accommodations that have been medically recommended in order to allow her to return to work. The current post offered to Mrs. Dempsey is a role of a second WTO (ISM) at Cloverhill Prison, which requires her to work 6-7 days every fortnight in a regular Prison Officer role with manual duties in the general prisoner accommodation. In this role Mrs. Dempsey may be deployed to any post in the prison in the event of staff shortage. She will also be required to cover Prison Officers on dinner and tea guard duty. Mrs. Dempsey has already been assessed as medically unfit for manual Prison Officer duties and therefore she is not medical fit for the current role of a second WTO (ISM) at Cloverhill Prison. Mrs. Dempsey has been assessed as medically fit for the role of WTO (ISM) that is solely office-based excluding manual Prison Officer duties. Mrs. Dempsey says that solely office -based roles of the WTO (ISM) are available in prisons throughout the country (incl. at the Midlands Prison and Portlaoise Prison), but that the IPS is refusing to make these positions available to her. The IPS is in breach of the employment equality laws, including the provisions of section 37(2) and (3) of the Employment Equality Act 1998 (as amended), in that it has failed to make any or any real efforts to facilitate Mrs Dempsey with reasonable accommodations so as to allow her to return to work in line with the medical advice she has received. Subject to certain reasonable accommodations Mrs. Dempsey is fully competent and available to undertake, and fully capable of undertaking, the range of functions that she may be called upon to perform as WTO (ISM), so that the operational capacity of the IPS would be fully preserved. Mrs. Dempsey submits that the accommodations she requires on medical grounds are not unduly burdensome or onerous on the IPS. The relevant roles for which Mrs. Dempsey is medically fit already exist and the accommodations Mrs. Dempsey is seeking are reasonable and do not place a disproportionate burden on the IPS. It is Mrs Dempsey’s case that these reasonable accommodations will not adversely affect the operational capacity or proper functioning of the IPS. Mrs. Dempsey has been advised that on medical grounds she will require accommodations indefinitely. The IPS however places a three-month time limit on any work-place accommodations. Mrs. Dempsey submits that the imposition of a three-month time limit on reasonable accommodations is per se in contravention of the employment equality laws. Furthermore, the IPS is in breach of the Employment Equality Act 1998 (as amended) in that the IPS has failed to notify Mrs. Dempsey of ongoing vacancies, promotions, competitions or training opportunities whilst she has been on IOD sick leave since May of 2017. Mrs. Dempsey is seeking redress and compensation for discrimination on grounds of disability.

The Complainant commenced employment with the Respondent as a prison officer in 2008 when she was 20 years of age. On 10 May 2017, in the course of her duties as a prison officer at Midlands Prison, she was the victim of a serious assault by a prisoner during which she suffered multiple injuries including injuries to her right knee and lower back. Since this incident, the Complainant has suffered with chronic and ongoing lower back pain which requires her to undergo regular specialist medical treatment including facet joint injections and nerve root blockage. In order to manage her ongoing symptoms, the Complainant takes medication as required and engages in physiotherapy and pain management treatment.

The Complainant’s medical advice (as per the Respondent’s CMO) is as follows:

a.       She is not medically fit for general prison officer duties.

b.       She requires to work in an office-based capacity without manual duties.

c.       She requires to be accommodated in a location without a long commute.

d.       She will require these accommodations indefinitely.

The Complainant has not returned to work since this incident in May 2017 and has remained on certified sick leave since that time. It is the Complainant’s case that this is due to the failure by the Respondent to make reasonable accommodation.

What is reasonable accommodation?

The Act does not require an employer to recruit, promote or continue to employ a person who is unable to perform the duties of the job in question. But that proposition is significantly circumscribed in the case of disability, by the obligation which the Act places on employers to provide an employee who has a disability with reasonable accommodation, referred to in the Act as “appropriate measures”. The purpose of providing reasonable accommodation is to enable a person who has a disability:

(1)    To have access to employment,

(2)    To participate or advance in employment, or

(3)    To undergo training.

There is no limitation on the type or category of measures that an employer can be expected to take, provided that they do not involve a disproportionate cost. It can involve effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. It may, in particular, involve the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration of resources.

Before deciding to dismiss an employee with a disability because of their incapacity, an employer is first obliged to establish the factual position concerning the nature and extent of the employee’s condition and its likely duration. If it is believed that the employee is not capable of performing the duties of their job the employer must consider what, if any, special facilities or appropriate measures could be provided so as to allow the employee to continue in employment (Determination EDA 0359, A Worker v A Health and Fitness Club. This decision of the Labour Court was upheld on appeal and is reported as Humphries v Westwood Club [2004] 15 ELR 296).W

The leading authority on the obligations of an employer to provide reasonable accommodation to an employee with a disability is the decision of the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 and [2019] 30 E.L.R 221. Here the Supreme Court clarified the law as follows:

·       The primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue employment.

·       That duty includes an obligation to consider relieving the employee with a disability of such duties as they cannot perform.

·       No distinction should be drawn for that purpose between duties and tasks or between core duties or essential duties.

·       The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job.

·       A reorganised job is not necessarily a new job. It is a matter of degree to be decided on the facts of the case.

·       A wise employer will consult with the employee with a disability before making decisions about their future employment. However, a failure to consult does not amount to discrimination for the purposes of the Act.

·       The employee with a disability must be fully capable of performing the duties of the position, after it is modified by the application of reasonable accommodation, which can include relieving the employee of the requirement to perform certain duties which they cannot perform.

I note para 107 from Nano Nagle School v Daly [2019] IESC 63:

107. Once consultation, or other necessary steps for compliance , have been taken, an employing entity may have to ask itself the ultimate question whether having explored the modes of accommodation , and if, prudently having consulted with an employee, the position , as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.

Witness Statements.

The Respondent produced witness statements from the following personnel:

1.       Paul Gibney – HR Governor of Cloverhill Prison.

2.       Colette Mulvey – APO Human Resources Directorate

3.       Sean Sullivan – PO Human Resources Directorate

4.       Mary Leydon – Governor – Human Resources Directorate.

Paul Gibney

Para 15 witness statement.

In terms of the IPS Accommodations (Rehabilitative/restricted duties) Policy, Governor Gibney will state that there are four temporary accommodations positions available in Cloverhill Prison. They are: (a) the ‘Key Room’, (b) on the Main Gate (c) the Control Room (d) the Waiting Room

Governor Gibney will explain that while these posts are filled on a temporary basis in accordance with IPS Accommodations (Rehabilitive / restricted duties) Policy…….

Colette Mulvey

Para 2,3 and 4 witness statement.

Ms Mulvey can provide information about the IPS’s Accommodations (Rehabilitative/restricted duties) Policy which was introduced by the Irish Prison Service in 2014 in order to ensure that positions involving lighter duties were retained for employees who needed a three-month period of rehabilitation before returning to full time duties. 

She will also state that all requests for the Reasonable Accommodation are dealt with on a case-by-case basis.

However, as Ms Mulvey will confirm, availing of the Accommodations (Rehabilitative/restricted duties) Policy, is a short-term arrangement which is entirely premised on the fact that the Prison Officer in question is capable, following a period of rehabilitation, of returning to full-time duties.

Sean Sullivan

Para 5 witness statement.

Mr Sullivan can provide an outline as to the establishment of ‘accommodation posts’ which, as negotiated and agreed with the Prison Officers Association, are available within the Irish Prison system with respect to the Accommodation (Rehabilitative/restricted duties) Policy.

Mary Leydon

Para 7

Governor Leydon can provide an outline to the Court on ‘accommodation posts’ which are available within the Irish Prison system. These have been retained for those who require them for a defined period of time as part of the accommodation policy or pregnancy posts.

All four of these witness statements appear to state that the IPS Accommodations (Rehabilitative/restricted duties) Policy provides accommodations for a temporary period of time.

Clause 2.4 of IPS Accommodations (Rehabilitative/restricted duties) Policy reads as follows:

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

The representative for the complainant has said in reply:

‘there is no lawful basis for limiting the period for which reasonable accommodation would be made in this manner by only providing for extended periods of accommodation in “exceptional circumstances.” The Respondent’s policy is therefore not in compliance with its legal obligations. This in turn undermines the Respondent’s ability to consider the issue of reasonable accommodation in a legally compliant manner as evidenced by its treatment of the Complainant’.

In reading through the submissions with attachments pertaining to this complaint I have read through the judgement of Mr. Justice Barr in Robert Cunningham and Irish Prison Service [2020] IEHC 282 (submitted by IPS). Attention is drawn to paragraphs 19, 20 and 21 of this Judgement. These paragraphs raise questions in relation to the accuracy of any statement alluding to a maximum period of 3 months accommodation being assigned to officers who may have been injured or otherwise disabled.

In his conclusion Mr. Justice Barr in Robert Cunningham and Irish Prison Service [2020] IEHC 282 (submitted by IPS) states the following at para 63:

It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law. This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act. The judgement of CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work. In addition, the Nano Nagle case makes it clear that the provisions of the CRPD (Convention on the Rights of Persons with Disabilities) are also relevant to the question of the correct interpretation of the Act…….

The complainant adopts the position that

(a)    Full-time WTO roles are available in various prisons throughout the country such as the Midlands and Portlaoise Prisons and

(b)    These full-time roles do not in fact entail carrying out general prison officer duties and if they do, this arises only exceptionally and therefore any such requirement could be dealt with by way of a reasonable accommodation.

Management Conference.

I believe that the complainant, Ms Dempsey, should have been invited to attend this conference to discuss a possible return to work.

I have very carefully considered all aspects of this complaint and now conclude that the complaint as presented under section 77 of the Employment Equality Act, 1998 is well founded.

Section 82 of the Act reads as follows:

82 (1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(c)     an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77.

e)       an order that a person or persons specified in the order take a course of action which is so specified.

I now order the Respondent to pay compensation to the complainant in the sum of €60,000, Such sum to be paid to the complainant within 42 days from the date of this decision.

In addition to compensation, I also order the Respondent, pursuant to section 82 (1)(e), to reasonably accommodate the complainant by finding a position which will permit her continued employment as a Prison Officer. The Complainant should be included in any discussion / decision in the task of finding such a position. This task should not take longer than 3 months from the date of this decision.

Employment Equality Act 1998; Reasonable Accommodation.