FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : DEPARTMENT OF JUSTICE, EQUALITY AND LAW REFORM (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - WILLIAM KAVANAGH (REPRESENTED BY COUGHLAN WHITE O' TOOLE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Department of Justice, Equality and Law Reform appealed the Equality Officer's Decision DEC-E2010-055 on 21st May, 2010, in accordance with Section 83 (1) of the Employment Equality Act 1998 to 2008. A Labour Court hearing took place on the 14th December, 2010. and also on 29th March 2011. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by a government department against a Decision of an Equality Officer dated 23rd April 2010, in a claim brought by the worker against his former employer alleging discriminatory dismissal on the grounds of disability contrary to Section 6(2)(g) in relation to conditions of employment and a failure to provide reasonable accommodation in terms of Sections 8(1)(b) and 16(3) of the of the Employment Equality Acts, 1998 – 2008 referred to herein as “the Acts”.
The Equality Officer found in favour of the Complainant’s claim.
For ease of reference in this Determination the parties are referred to using the designation prescribed by Section 77(4) of the Act. Hence, the government department is referred to as “the Respondent” and the worker as “the Complainant”.
The Complainant referred his claim to the Director of the Equality Tribunal on 19 May 2008 under the Employment Equality Acts 1998 and 2004.
Background
The Complainant is a Prison Officer. He commenced his employment in that capacity on 17th January 1981. On 14th February 2005, whilst still on sick leave, he advised the Department that he wished to apply for early retirement from the Irish Prison Service on the grounds of ill health and on the advice of his General Practitioner and a Consultant Physician, Dr. D.
On 28th May 2005 he was removed from the payroll as he had exhausted his entitlement to sick pay. However, he was granted the applicable pension rate of pay for three months until 28th August 2005.
On 27th June 2005 following a medical assessment by the Respondent’s Chief Medical Officer of the Civil Service (CMO) the Complainant’s application for ill health retirement was refused. He appealed the finding of the medical report and was referred by the Respondent to an Independent Medical Referee, a Specialist in Occupational Medicine.
On 25th October 2005 he was informed that his appeal had been turned down and he was advised that if he did not return to work immediately he would be removed from the payroll. The Complainant’s solicitor wrote enquiring about the possibility of a further appeal pending a further consultation with a Consultant Physician.
The Complainant submitted that he did not return to work on the advice of his Consultant Physician, who advised him that it would be a risk to his health to do so. On 9th November 2005, the Complainant was removed from the payroll and on 10th January 2006 the Complainant was informed that in view of his failure to return to work, it had been decided to submit his file to the Director General for consideration of his dismissal.
On 23rd January 2006 the Complainant’s Solicitor made a submission to the Respondent enclosing copies of medical assessments from Dr. D disagreeing with the assessment of the CMO and the Independent Medical Referee. Dr. D’s assessment stated that a return to his job as a Prison Officer"would be injurious to his health". The Solicitor further requested the Director General to defer a decision on his dismissal, pending a report from Dr. O’G, a Consultant Cardiologist.
On 13th September 2006, the Complainant submitted a report from Dr. O’G which concluded ;"I do not think it would be feasible for [the Complainant] to return to his job as it will bring about a recurrence of his previous symptoms."
On 16th October 2006, theRespondent’s Specialist in Occupational Medicine examined the Complainant for a second time and concluded that his original opinion on the Complainant’s fitness to work had not changed – he reported that"the history outlined above does not suggest to me that he is totally and permanently disabled or a suitable candidate for ill health retirement" and he concluded thathe was“well and symptom-free”.
On 16th November 2006 the Complainant was requested to resume duty immediately.
On 4th December 2006 the Complainant, accompanied by his Solicitor had a meeting with a representative from HR who confirmed that the Respondent was bound by the view of the CMO, which had endorsed the report of the Independent Medical Referee. The HR Representative stated that the possibility of lighter work could be explored with the Governor if the Complainant returned to work.
On 13th December 2006 the HR Department wrote to the Complainant confirming that there was no further appeal available from the decision of the CMO and the Independent Medical Referee and that it was still open to him to return to work and to discuss the possibilities of lighter duties with the Governor. The Complainant was asked to respond. He did not respond.
On 5th February 2007 the HR Department wrote to the Complainant indicating that it had been decided that his file should be resubmitted to the Director General for consideration of his dismissal. The Complainant was again given 14 days to furnish any submission he might wish in that regard. In response the Complainant’s Solicitor made a request that the Complainant be referred to an independent cardiologist. The Respondent replied on 22nd March 2007 indicating that the CMO had found that the Complainant had no active cardiac illness that would require an independent cardiology opinion. It quoted the CMO’s response that in common with many middle-aged men in Ireland; he had risk factors, which were being appropriately managed. However, as he did not presently have an active cardiac illness, and he was not suffering from any illness that warranted consideration of ill health retirement, it declined his request.
The letter noted that all of the relevant material would be laid before the Director General for his decision and stated that it was not normal practice to have an oral hearing before him.
On 16th May 2007, the Complainant’s Solicitors again wrote requesting an oral hearing and sight of the Independent Medical Referee’s report of October 2006.
On 1st June 2007 the CMO confirmed that the Independent Medical Referee’s report had been released to the Complainant’s solicitors.
On 19th February 2008 the HR Department issued a minute from the Human Resources Directorate stating that the Minister had agreed to recommend to the Government the dismissal of the Complainant on the basis that he has shown himself to be an Officer“chronically unable to provide a regular and effective service”and allowed him 14 days to appeal.
On 4th March 2008 the Complainant requested an oral hearing and requested that he be considered for transfer to a less stressful position.
On 12th March 2008 the Complainant was re-assessed by Dr. D, Consultant Physician who found that his condition remained largely unchanged and stated that with his background of hypertension, hypercholesterolaemia and his strong family history of premature cardiac death that he would strongly recommend;"that he should seek a transfer to a department within the service where his employment would be less stressful."
On 7th May 2008 in a letter from the HR Department, the Complainant was informed that no oral hearing would be granted. The letter stated that he had been given numerous warnings in relation to his poor attendance, the most recent being on 5th February 2007 when he was notified that his dismissal was being considered. In relation to the issue of alternative posts in the Department and the wider service, he was informed that he could apply in the normal fashion, through the Public Appointments Service.
The Complainant made this claim to the Equality Tribunal on 19th May 2008 and the Respondent suspended the dismissal proceedings pending the outcome of the claim.
The Complainant’s Case
Mr. Patrick Hoban, B.L., presented the case on behalf of the Complainant at the first day of the hearing and Ms. Cathy Maguire, B.L., presented the case on the 2nd, 3rd and 4th days, instructed by Coughlan White O’Toole Solicitors. The Complainant’s Counsel stated that the Complainant suffered from hypertension and contended that this came within the definition of the term“disability”under the Act, being a malfunction of a person’s body.
Counsel submitted that the Complainant had been discriminated against by the Respondent's refusal to deem his condition a disability, by its refusal to allow him retire on ill health grounds, by compelling him to return to work and recommending his dismissal for being chronically unable to provide a regular and effective service. Furthermore, they submitted that the Respondent was in breach of Section 16 of the Acts as the Complainant was not allowed reasonable accommodation when it denied him “appropriate measures” to allow him access to employment.
Counsel submitted a report from Dr. O’G, Consultant Cardiologist, dated 4th of September 2006 which states as follows: -
- “Stress is recognised as exacerbating hypertension and also may be involved in precipitating acute coronary events. For these reasons it would be best that [the Complainant] should avoid overly stressful situations. [the Complainant] is clearly very stressed by his job and is particularly worried as he has seen some of his colleagues have had major vascular events. I do not think it would be feasible for [the Complainant] to return to his job as it will bring about a recurrence of his previous symptoms”.
Mr. David Keane, S.C. instructed by Chief State Solicitors Office, on behalf of the Respondent, denied that the Complainant was discriminated against on the grounds of his disability. Mr. Keane stated that the Complainant went absent from duty on sick leave from 28th May 2004 and has never returned. He was paid in accordance with the sick pay scheme for the first 12 months and thereafter he was put on a pension rate of pay. On 14th February 2005 he applied for early retirement from the Irish Prison Service on the grounds of ill-health. On 20th June 2005 he was examined on behalf of the Respondent by the CMO who concluded that he was fit to return to work. The Complainant appealed this decision and an Independent Medical Referee, Specialist in Occupational Medicine reported on 22nd September 2005 that"with respect to his suitability for ill health retirement I believe this gentleman is in good health and fit for employment.".
The Respondent then wrote to the Complainant on 25th October 2005 advising him that the Independent Medical Referee supported the view of the CMO and requested him to return to work, otherwise he would be removed from the payroll. As he did not return to work the Complainant was removed from the payroll on 9th November 2005.
In January 2006, after the Respondent advised him that it was submitting a proposal to dismiss him, the Complainant submitted three medical reports from his Consultant Physician which contradicted the CMO and the Independent Medical Referee. The Complainant was permitted to submit a report from a Consultant Cardiologist before any further action be taken. That report was submitted on 13th September 2006 and the Consultant Cardiologist concluded,"I do not think it would be feasible for [the Complainant] to return to his job as it will bring about a recurrence of his previous symptoms."In the light of this report the Respondent arranged for the Complainant to see the Independent Medical Referee again, and on 16th October 2006, he furnished a further report stating that his original opinion remained unchanged from his previous assessment. As a result of this report the CMO concluded,"ill health retirement is not appropriate."Consequently, the Respondent wrote to the Complainant on 16th November 2006 advising him of these reports and requesting him to resume duty immediately.
The Complainant was offered a meeting and Mr. McDonagh, Human Resources Directorate met with the Complainant on 4th December 2006. At that meeting it was suggested that the Complainant could discuss the possibility of assuming lighter duties with the Governor on his return to work but the Complainant was not amenable to this suggestion. He was offered the opportunity to make a further submission. He took this opportunity in February 2007 when he reiterated previous arguments and sought an oral hearing before the Director General of the Irish Prison Service. Subsequently he requested a referral to an independent cardiologist. This request was considered by the CMO who concluded"The issue of ill health retirement does not arise, as he is not suffering from any illness that warrants consideration of ill health retirement. Thus, we do not advocate referral to a cardiologist. We have already got sufficient medical information on file about his health."The Respondent confirmed this position to the Complainant on 22 March 2007.
The Respondent informed the Complainant in February 2008 that the Minister had agreed to recommend to the Government that the Complainant be dismissed and he was given 14 days to appeal. The Complainant appealed and requested an oral hearing before the Minister and he requested a transfer to a less stressful position within the Department of Justice. The Respondent advised the Complainant that there would be no oral hearing and he was free to apply for other positions in the Department through the Public Appointments Service.
As a preliminary point the Respondent submitted that the Complainant’s claim was made on 19th May 2008. The Respondent contended that any alleged acts of discrimination in relation to his application for retirement on ill health grounds occurred on 27th June 2005, 25th October 2005, 16th November 2006 and 22nd March 2007. Therefore the complaint was out of time in accordance with section 77(5) of the Acts.
In relation to the substantive complaint the Respondent further submitted that the Complainant failed to establish that he had a disability within the meaning of the Acts. The Respondent further submitted that the claim of discrimination in relation to the Complainant's request for early retirement on ill health grounds related to pension rights and pension rights are not included in the definition of ‘conditions of employment’ within the meaning of section 2(4) of the Acts.
Mr. Keane further submitted that the Complainant first maintained that he was suffering from a disability to such an extent that he could not continue in employment and was therefore entitled to an ill-health retirement pension. Yet late in the dismissal process he put forward an alternative proposition that his disability was such that the only appropriate measure that would permit him to remain in employment was a transfer to another position within the Department or to a position within the Irish Prison Service that does not involve any contact with prisoners.
Furthermore, Mr. Keane stated that the Complainant’s Consultant General Physician did not recommend any form of counselling, stress management, psychological or psychiatric evaluation for the Complainant, as he was quite satisfied that the only appropriate course of action was the Complainant’s early retirement on ill-health grounds or a transfer to another position that did not involve contact with prisoners.
Mr. Keane asserted that at all material times the Complainant had been in good health and fit for employment without any need for counselling or other psychological or psychiatric evaluation. He maintained that these services were available at all times to the Complainant through the Respondent’s welfare service. However, he did not seek to avail of any of these services either prior to or during his absences.
Finally, Mr. Keane laid emphasis on the express provision in Section 37(3) of the Acts, that a Prison Officer must be fully capable of carrying out their duties. This provision, he contended, allowed for a difference in treatment based on a characteristic related to a disability. Consequently he contended that there could be no finding of discrimination in this case. In any event, he said that the whole concept of “appropriate measures” or “ reasonable accommodation” under Section 16(3) is designed to render a person fully capable to undertake the relevant duties. He submitted that it is therefore, a contradiction in terms to suggest that a transfer to other duties is an appropriate measure rendering a Prison Officer fully capable of carrying out his duties.
Witness Testimony
Dr. D., Consultant General Physicianwitness on behalf of the Complainant, told the Court he had 24 years experience, 20 of which were spent in Naas General Hospital. He told the Court that in his opinion Benign Essential Hypertension (BET) can be classified as a disability. He said that any cardiovascular complaint is a malfunction, which coupled with BET, is disabling. He said the hypertension constitutes a malfunction of the circulatory system.
The import of Dr. D’s evidence to the Court was that having diagnosed the Complainant with BET in 2004 he found that this diagnosis coupled with a positive family history of cardiovascular disease put the Complainant at risk of mortality if he returned to work as a Prison Officer and accordingly he advised him to make a career change On this point he disagreed with findings of both the CMO and the Independent Medical Referee. He reported that while the Complainant’s symptoms started at work they also persisted outside the workplace. Dr. D. accepted that he had never examined the Complainant at any time while he was still at work. In cross-examination Dr. D. accepted that all investigations carried out on the Complainant proved normal and no recommendations were made to change his lifestyle in any way.
There was some confusion over the Complainant’s parent’s medical history; however, Dr. D accepted that at the time of his investigations he was of the belief that there was no first-degree relative with cardiovascular disease.
Dr. M., Occupational Physician with the Chief Medical Office,witness on behalf of the Respondent, told the Court further to the Complainant’s application for Ill Health Retirement, she examined him on 20th June 2005. He told her he was fit and wanted to return to work. She informed the Court that having assessed him she found that all this test were normal and his symptoms were under control, and noted that none of his physicians had recommended that he should have an angiography. However, she felt that his smoking was the main risk factor.
Dr. O’C., Chief Medical Officergave evidence on behalf of the Respondent and said that while the Complainant was diagnosed with Benign Essential Hypertension, he was not suffering from any illness, there were no symptoms with this condition, all investigative tests proved normal, his blood pressure and cholesterol were under control, he had no active cardiac illness, his own doctors had reported no work related stress, depression or psychological problems. The Complainant had admitted that he was not ill and he wanted to work. He was a very fit man who exercised regularly and his own Cardiologist confirmed that he does not have any hidden cardiovascular disease.
Dr. O’C said that the Complainant’s absolute highest risk factor of mortality taking all factors into consideration was 6% over the next 10 years and that if he ceased smoking the risk factor reduces to 2%. (The Complainant did not cease smoking until 2010.) He pointed out that the Complainant’s family history had not been mentioned until the appeal of the appeal stage (January 2006) by which stage there had been five doctors involved in the assessment for Ill Health Retirement process.
Dr. O’C disputed the Complainant’s doctors opinion of the effects of the impact of a Cathelomenia surge on the Complainant if he returned to work, he said that his signs were all normal so if he were to experience a Cathelomenia surge (an adrenalin surge) Dr. O’C did not consider that the Complainant would be in any particular danger.
Dr. O’C, gave his opinion that a person with BET could not be classified as having a malfunction of the body; he said it was not an illness, but a risk factor.He explained that it is Benign because it had no symptoms (Malignant Hypertension on the other hand signifies that there is an underlying cause), its Essential because its cause is unknown and Hypertension means its high blood pressure. He said that some people get it at an earlier stage than others. A person with BET may be at risk of developing other problems but with controlled medication those risks are reduced and can be nullified with lifestyle changes.
Dr. O’C. said that it was very surprising that someone with BET would apply for Ill Health Retirement and especially in this case where all investigative tests had proved normal, he said that BET is normally dealt with in the community and it was not something which he had encountered before as CMO. If BET were to be deemed a disability then statistics show that 53% of the adult male population in Ireland surveyed in the age group 45 to 64 years was hypertensive. On this basis almost 60% of the general population would be considered as having a disability.
He said in common with many middle aged men in Ireland, he had risk factors, which were being appropriately managed, however, as he did not presently have an active cardiac illness, and he was not suffering from any illness that warranted consideration of ill health retirement, it declined his request.
Dr. R Independent Medical Referee/Specialist in OccupationalMedicine told the Court that he deemed the Complainant to be in good health, with no symptoms, normal blood pressure and fit for employment. He was not satisfied that a causal link had been established between the Complainant’s blood pressure which was now under control and his conditions at work. He disagreed with the opinion of the Complainant’s treating Doctor that he was at high risk of mortality and thought it premature to say that the Complainant would not be able to work again.
Dr. R stated that to be eligible for Ill Health Retirement an employee must be incapable of giving a regular and effective service due to a current ongoing medical condition, which is likely to be permanent, and she formed the opinion that the Complainant did not fit into that category.
Dr R. gave his opinion on the classification of ‘BET’ and said that a it could not be classified as having a malfunction of the body, he said it was not necessarily a serious problem, while he found it difficult to put a label on it, he said it’s a condition rather than an illness which if left untreated could potentially give rise to risks in the long term. However, if treated with medication the risks of developing future symptoms are reduced. He also said that where a person with BET stops taking medication it does not necessarily mean that they have a repeat of problems.
Preliminary Issues
Time
The Respondent raised a preliminary issue that this claim is out of time pursuant to the provisions of section 77(5) of the Acts on the grounds that the decisions made in relation to the Complainant's application for early retirement on ill health grounds on 27th June 2005, 25th October 2005, 16th November 2006 and 22nd March 2007 were crystallised one-off decisions. Consequently the Respondent submitted that the last date on which the Complainant could bring a complaint under the Acts, even if an extension of time were granted, was the 21st March 2008. The complaint was referred under the Acts on 19th May 2008 and consequently was out of time.
The Complainant contended that he appealed the decision by letter dated 22nd March 2007 and that the events, which took place thereafter, were all related and constituted continuing acts of discrimination. He submitted that the Governor wrote to the Complainant on 21st February 2008 confirming the Minister's agreement to recommend to the Government that he be dismissed on the basis that he had shown himself to be an Officer“chronically unable to provide a regular and effective service”.
The Complainant appealed that decision and contended that the last act of discrimination occurred on 7th May 2008 when the Human Resources Directorate wrote to him confirming that he would not be granted an oral hearing and that he would be recommended for dismissal.
The Complainant’s Counsel submitted that while the discrimination commenced with the response to his application for early retirement on ill health grounds it also included the treatment of him in relation to his disability following the initial application.
The Equality Officer accepted this contention and found that the letter of 7th May 2008 was the most recent occurrence in a series of related events and as such the complaint is within the time limits set out in section 77(5) of the Acts. The Court can see no grounds to overturn that finding.
Terms and conditions of employment
The Respondent contended that the Complainant’s complaint in fact dealt with his pension rights and that pension rights are excluded from the protection of the Acts.
The Equality Officer found that the claim related to the Complainant's allegation of discriminatory treatment on the ground of disability. The discriminatory treatment was a decision to dismiss him from his employment. This undoubtedly came within the definition of unequal treatment under the terms and conditions of his employment. No complaint was made in relation to the pension itself. The Court can see no grounds to overturn that finding.
Substantive Issues
The Law
The Court has been asked to determine whether the condition from which the Complainant suffers is a ‘disability’ within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (c) of the definition of disability contained at Section 2 of the Acts and the application of that definition to the facts as admitted or as found by the Court. The statutory definition provides: -
Section 2 of the Acts defines disability as follows:
- "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 judgement 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;
16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
- (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3)(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 section 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-
(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
(ii)the scale of the financial resources of the employer’s business, and
(iii)the possibility of obtaining public funding or other assistance.
Finally the Court must consider whether Section 37(3) provides an exclusion of discrimination on the disability ground, as the Complainant is a Prison Officer.
(i)Does the Complainant’s condition constitutes a disability
As recounted above the Court heard a number of experts give evidence in relation to the Complainant’s condition. The witnesses who gave that evidence are eminent practitioners in the field of Occupational and general medicine. They differed in their opinions as to whether BET can be classified as a disability, especially in the Complainant’s case where all his investigative tests were normal, he has no cardiovascular disease and his condition was under control. They agreed, however, that the Complainant has been diagnosed with BET and continues to take medication to control the condition. However, the Court notes that all investigative tests carried out on the Complainant proved normal except for his cholesterol levels, which was under control by the use of prescribed medication. He was never diagnosed with cardiovascular disease.
Counsel for the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that over 60% of the general population would be classified as disabled if it were accepted that controlled hypertension were a disability. This, it was submitted, would be an absurd result. There is considerable cogency in that argument.
InA Government Department v A WorkerEDA094, this Court held that:
- “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (seeBank of Ireland v Purcell[1989] IR 327). Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”
Counsel for the Complainant contended that Section 37(3) explains Section 37 (2) of the Acts and is not a free standing justification for discrimination on the disability ground in the name of“the operational capacity of the service”and not every Prison Officer would be required to be capable to called upon to perform the full range of duties of a Prison Officer. Therefore if the Complainant were to be accommodated in a role outside of a prison, and not have interactions with prisoners, there would be no conflict with Section 37(3) of the Acts.
Section 37(3) of the Acts states:
- “It is an occupational requirement for employment in the Garda S�ochána, 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 S�ochána or the service concerned may be preserved.”
Counsel for the Complainant stated that the Complainant’s physicians advised him that his disability is such that the only appropriate measure that would permit him to remain in employment is a transfer to another position within the Department or to a position within the Irish Prison Service that does not involve any contact with prisoners. Counsel submitted that the Respondent had a statutory duty under section 16 to make such a position available to the Complainant.
Court’s Findings
It is not disputed that the Complainant is incapable of taking up the entire range of his duties by reason of his condition. The Complainant’s case in essence is that if he suffers from a disability then the Respondent must reasonably accommodate this disability and that this reasonable accommodation involves moving him to a position in which he would have no contact with prisoners. The Court is of the view that this is an incorrect interpretation of the provisions of Section 16. The purpose of Section 16(3) is to provide a person with a disability with “appropriate measures” or “ reasonable accommodation” in order to render that person fully capable to undertake the full range of duties associated with their posts.
In this particular case the Complainant’s suggestion that the Respondent provide him with alternative employment outside of any contact with prisoners could not be deemed to come within the provision of “appropriate measures” as provided for in Section 16, as it will not enable him to carry out the full range of his duties as a Prison Officer.
Once the Complainant cannot carry out the full range of duties due to an alleged disability and no reasonable accommodation can enable him to do so then the Respondent is entitled to rely on the provision of Section 37(3) of the Acts as a complete defence to a complaint that they failed to provide appropriate measures to accommodate his disability within the meaning of Section 16(3).
In the circumstances the Complainant cannot avail himself of the provisions of Section 16.
The Court is sustained in this conclusion by the judgment of the Supreme Court in the matter of the Employment Equality Bill, 1996 [1997] 2 I.R. 321 in which the Supreme Court was requested by the President to assess the constitutionality of the provisions in the Bill.
When considering Section 37 of the Bill, which granted a blanket exemption from any complaint of discrimination on the age or disability grounds in respect of member of the Defence Forces, Garda S�ochána and the Prison Service, the Supreme Court held as follows: -
The Court first stated in relation to the age ground:
- "It might be, at first sight, more difficult to defend on constitutional grounds the wide-ranging exclusion from the Bill's provisions of employment in the Defence Forces, the Garda S�ochána or the Prison Service….
- ….. Given the distinctive requirements associated with these branches of the public service and the particular importance of ensuring a high level of physical and mental fitness, it can hardly be said, in the court's view, that the decision of the Oireachtas to remove them from the ambit of this particular measure, whether correct or not, is unrelated to a permissible legislative objective or irrational or unfair."
- "In view of what is said above it is not necessary for the Court to deal with the exemption of 'employment' in the Defence Forces, the Garda S�ochána or the Prison Service from the disability provisions of the Bill.
For all the above reasons, the Court finds that the Respondent did not discriminate against the Complainant on the grounds of disability contrary to Section 6(2)(g) of the Employment Equality Acts, 1998 – 2008.
Determination
The Court overturns the Equality Officer’s Decision and upholds the Respondent’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th June, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.