FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : IRISH PRISON SERVICE (REPRESENTED BY PETER LEONARD, B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE) - AND - A PRISON OFFICER (REPRESENTED BY CLIONA KIMBER, S.C., INSTRUCTED BY REIDY STAFFORD, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision no ADJ-00002267.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 28 February 2017 in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. Two Labour Court hearing took place on 17 October 2017 and 22 May 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by the Irish Prison Service against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts), which found that the Respondent had failed to consider the provision of reasonable accommodation to a Prison Officer to enable him to return to his duties as a Prison Officer. The Adjudication Officer awarded €40,000 compensation.
For ease of reference the parties are given the same designations as they had at first instance. Hence the Prison Officer will be referred to as “the Complainant” and the Irish Prison Service will be referred to as “the Respondent”.
The Complainant referred his claim to the Workplace Relations Commission on 4th March 2016. The issue of time limits was dealt with as a preliminary issue. The Adjudication Officer held that the claim was in time and this decision was not on appeal.
Background
The Complainant has been employed as a Prison Officer with the Respondent since 5thMarch 2005.Following completion of his training in May 2005, he was assigned to Cloverhill Prison where he served as a Prison Officer for just over six years. On 18th June 2011 he was transferred to the Midlands Prison, Portlaoise. While serving as a Prison Officer at Cloverhill Prison in December 2007 he suffered injuries to his back while relocating a violent prisoner.
While on duty on 11th December 2011 the Complainant sustained a further injury to his back while moving a prisoner who became violent. He was out of work from 11thDecember 2011 to 18thMay 2012. On 16th April 2012 having examined the Complainant, the Respondent's Chief Medical Officer advised that on his return to work, the Complainant should be assigned to non-prisoner contact duties. He was sanctioned accommodation postings and returned to work on 18th May 2012. On 12th March 2013, the Chief Medical Officer advised the Respondent that the Complainant could not involve himself in control and restraint duties with prisoners in the medium to long term and he was therefore assigned to restricted duties, this turned into lower risk duties going forward. At a later date he was carrying out wider risk duties and by May 2013 he was assigned his full duties. He queried this at the time and made applications for a transfer to the Security Screening Unit, the Operational Support Group and the Canine Unit. These are Units where there is no prisoner contact. The Complainant had further surgery in August 2013 and returned to his full duties at the end of September 2013.
In 2015 the Complainant had more surgery and sought to return to restricted duties. The Chief Medical Officer deemed him fit to return to non-prisoner contract duties from 11thMay 2015. The Complainant and Management entered into discussions on his return to work. By 15thOctober 2015 he was advised that the only option was to return to work under the terms and conditions of the Accommodation’s Policy. By 29thOctober 2015 he was informed that, taking account of the Chief Medical Officer’s advice, the only possible options open to him were to avail of ill health retirement or to transfer to PASO (Prison Administration Support Officer) grade. If neither of these options was agreeable to him then he could return to work for a period of three months under the Accommodations Policy and if there was no improvement in his condition within three months and he was not in a position to carry out control and restraint duties then he would have to go back out on sick leave.
As the Complainant was not satisfied with the options available to him he proceeded to submit his claim under the Acts.
The Accommodations Policy Documents states: -
- "Each period of Rehabilitative/Restricted duties should not exceed3months. Only in the most exceptional circumstances will accommodation of this nature extend beyond3months and only on the recommendation of the CMO having regard to the operational needs of the Irish Prison Service.".
Ms Cliona Kimber, SC., instructed by Reidy Stafford, Solicitors, on behalf of the Complainant, submitted that the Complainant is entitled to reasonable accommodation in accordance with Section 16 of the Employment Equality Acts and in particular to a distribution of tasks in accordance with Section 16(3) (a) and Section 16(4) (b). According to Ms Kimber, the task for which the CMO advised that the Complainant was not fit, namely control and restraint duties/training, is not required in a number of posts for which the Complainant has succeeded in being placed on a panel on which persons are ranked by seniority. Ms Kimber referred to a letter from the Respondent dated the 21st January 2016 which stated that“there are very limited posts available”and that these posts “are required for pregnant staff."She speculated therefore that a person who is pregnant is given priority over a person who is disabled. Ms Kimber submitted that the seniority rule should not be applied in relation to the Complainant who is a person with a disability and has a right to reasonable accommodation.
Ms Kimber contended that the Respondent labours under a misinterpretation of its obligations under Section 16. It alleges that it requires a work force that are capable of performing all of the duties that they were recruited to undertake in order to function. She dismissed that contention relying on the case ofMarie Daly v Nano Nagle School[2015] IEHC 785, High Court where Noonan J decided as follows: -
"The Labour Court noted at the outset that it was the school's position
that Section 16does not require an employer to continue an employee in employment who is not fully capable of undertaking the job that he or she was employed to do. It seems to me that as Counsel for Ms. Daly submitted, the school adhered to this position throughout, up to the commencement of the hearing of this Appeal when it modified its position to a significant degree by conceding that Section 16 may require the stripping out of tasks peripheral to the job. That concession was not made at the hearing before the Labour Court. Thus, the schools position was that the concept of reasonable accommodation and the implementation of appropriate measures as defined in Sub Section3and 4 applied only to such measures as would render Ms. Daly capable of fulfilling all the duties of the job. Since noamount of reasonable accommodation or appropriate measures could ever achieve that situation, the school considered itself to have no further obligation to Ms. Daly.
In that regard, I accept Mr. Quinn’s submission that this was an erroneous view of Section 16.Were the schools position correct it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated. The definition of "appropriate measures" in Sub Section 4 includes the adaption of both patterns of work in time and distribution of
tasks…………. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the Section would fail to achieve the objective for which the legislation was enacted"
Ms Kimber contended that the Complainant's right to reasonable accommodation is not lessened by the provisions of Section 35 (1) and/or Section 37. She stated that any derogation from a principle of Equality Law must be construed strictly, in accordance with the requirements of the jurisprudence of the Court of Justice of European Union. There are posts available within the prison service that do not require the Complainant to do the duties which the CMO has said are not suitable for him and in accordance with the Complainant's statutory right to reasonable accommodation, Ms Kimber submitted that it was incumbent on the Respondent to provide him with one of these posts.
Summary of the Respondent’s Position
Mr Peter Leonard, B.L., instructed by the Chief State Solicitor’s Office, on behalf of the Respondent, denied that the Respondent had discriminated against the Complainant onthe grounds of disability. He submitted that account must be taken of the physical nature of the duties that a serving prison officer is required to carry out in the course of his or her employment. Mr Leonard submitted that as the requirements of a serving prisoner can at times be onerous and physically exacting, the Respondent has a fundamental requirement that its workforce are capable of performing all duties associated with the role. On that basis the Respondent was entitled to rely on the special derogation provided to the Respondent under Section 37 of the Acts. In any event the Respondent offered reasonable accommodation and alternative employment to the Complainant. In that context, he relied upon the terms of its Accommodation Policy which was established to allow serving prison officers a temporary period of rehabilitation (three months) and was not established to accommodate prison officers who are no longer able to carry out full time duties.
Mr Leonard expressed his regret that the Complainant suffered an injury at work, however, he stated thatit is an unfortunate fact of life and indicative of the difficult nature of the job that it is relatively common place for serving prison officers to sustain injuries in the course of their duties.
Mr Leonard stated that as a result of examinations carried out by the Chief Medical Officer, the CMO was of the view that his physical condition meant it would not be possible for him to return to his full-time position as a serving Prison Officer. It was explained to him that, due to the operational demands on the organisation, the Respondent did not have positions available to accommodate staff on restricted duties other than in accordance with the limited rehabilitation periods provided for under the Accommodations Policy, which provides a three-month rehabilitation period for Prison Officers who are capable of resuming full time duties. it is only in exceptional circumstances where the serving prison officer has the potential to return to full time duties, that a longer period can be considered.
Mr Leonard said that the Respondent does not have capacity to accommodate staff on longer periods on these duties as there are very limited posts available and these posts are required for pregnant staff.
The Respondent informed the Complainant that as there were no other positions available to him the only other options were to transfer to a clerical administration role within the service or alternatively he could apply for ill health retirement with the CMO.
Mr Leonard submitted that the consideration given by the Respondent to accommodate the Complainant was entirely consistently with the requirement set out by Mr Justice Noonan inNano Nagle SchoolvMarie Daly [2015] IEHC785. In that decision the learned High Court Judge stated that the duty on the employer was to fully consider and explore the possibility that the employee in question could be reasonably
accommodated. He said: -
- " It isimportant to recognise that in reaching its conclusions, the Labour Court did not make any determination that Ms. Daly ought to have been accommodated by the school in any particular way. Rather, the Labour Court was of the view that the school simply did not consider the possible options that were available. Had it done so, the Labour Court was of the view that the school might legitimately have concluded that Ms. Daly could not be accommodated.”
Thus it said (at p. 33):
- "Had [the school] given full and proper consideration to these possibilities it might or it might not have concluded they were viable, reasonable and proportionate in the circumstances prevailing. "
- "Had [the school] given full and adequate consideration to all the possible options it might or it might not have reached a different decision. That, however, is not a matter on which the court can speculate. "
The Court Hearing of the Appeal
At the hearing of the appeal before the Court, additional points of law arose in oral argument which the Court indicated required further legal submissions on the points arising. To that end it sought a supplementary submission from the Complainant’s legal representatives. The Respondent’s legal representatives were requested to furnish the Court with a written response to the supplementary submission.
The Court indicated that it would make its determination on these issues before considering whether or not a hearing of the substantive case is required as in dealing with these issues it may dispose of the case.
The legal points arising are as follows: -
The Court must consider the meaning and intent of Section 37(3) of the Acts; whether Section 37(3) must be read in conjunction with Section 16(3)(b) or whether it is a stand-alone provision; does Section 37(3) provide an exclusion of discrimination on the disability ground as the Complainant is a Prison Officer.
The Court brought to the attention of the parties the Labour Court decision inDepartment of Justice, Equality and Law Reform v KavanaghEDA 1120 and request them to address the applicability of that case to the instant case.
Meaning and Intent of Section 37(3)
Summary of the Complainant’s views
Ms Kimber submitted that Section 37(3) provides a limited derogation of sorts. However, she submitted that there is no blanket exemption from the requirement to reasonably accommodate, as contended by the Respondent. according to Ms Kimber Section 37(3) must be read in conjunction with Section16, and submitted that the words are‘fully competent and available to undertake and fully capable of undertaking'in Section 37(3) mean fully competent with the reasonable accommodations defined by Section 16.
She referred to Recital 18 of the Framework Directive and contended that it is a guidance aid only to the main text of the Directive. That main text only contains exemptions for the armed forces. The Directive in any event does not prevent the Member States from granting greater rights and fewer exemptions to equality rights in domestic law.
The Court directed both parties to address the applicability of this Court’s decision inDepartment of Justice, Equality and Law Reform v KavanaghEDA 1120 to the instant case.In response both parties made careful and comprehensive submissions.
For her part, Counsel for the Complainant, Ms Kimber surmised that while appearing to be similar, it was based on very different facts. In the first place, she said that theKavanaghdecision was decided before the Court had the benefit of theNano Nagledecision of the Court of Appeal, or of the decision of the Court of Justice of the European Union (CJEU) decision ofHK Denmark, acting on behalf of Jette Ring v Dansk Almennyttigh Boligselskab (C-335/11).
She said that inKavanaghthere were no detailed legal arguments as to
the independent meaning of Section 37(3) as compared with Section 37(5), and if Section 37(3) was a complete derogation or not. Rather, she said that the Determination of the Labour Court records that the meaning of Section 37(3) was interpreted based on the requirements in Section 16(3). According to Ms Kimber, the meaning of Section 16(3) is now informed by the subsequent cases ofNano Nagleand HKDenmarkand the basic premises ofKavanaghare no longer correct law.
Ms Kimber referred to HKDenmarkwherethe CJEU ruled that "appropriate measures" as referred to in Section16(4) of the Acts include the adaptation of both patterns of working time and tasks. InNano Naglethe President of the Court of Appeal, referring to HKDenmarkheld in relation to Section 16(3): -
- "The Section does envisage some distribution of tasks, just as it also specifies time adjustments, as HKDenmark found was the case with the Directive. It iscorrect to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person
is unable to perform; in general, it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails…..(paragraph 54)”
Ms Justice Finlay Geoghegan in the Court of Appeal held: -
- "My conclusion on the interpretation of Section 16 isthat itiscorrect to construe the obligation placed on an employer to take appropriate measures as potentially including an obligation to consider a distribution of certain tasks. However, whether it is obliged to dosoin any given situation will depend upon the facts and in particular whether the tasks in question are or are not all the tasks demanded of a particular duty attached to the position in question……"(paragraph 30)
Ms Kimber said that the Department inKavanaghargued that reasonable accommodation under Section 16(3) was designed to render a person fully capable to undertake the relevant duties and that it was 'a contradiction in terms to suggest that a transfer or other duties is an appropriate measure rendering a Prison Officer fully capable of carrying out his duties." The Department concluded, therefore that Section 37(3) means that a Prison Officer must be fully capable of carrying out their duties.
Ms Kimber asserted that the Department's argument inKavanaghcould be said to have been rejected inNano Nagle,because the Court of Appeal rejected the idea that Section 16(3) or reasonable accommodation rules out a redistribution of tasks.HK Denmarkalso envisages an adaption of tasks.
Ms Kimber said that the following finding of the Labour Court shows that its decision intertwined Section 16(3) and Section 37(3).
- "Once the Complainant cannot carry out the full range of duties due to an alleged disability and no reasonable accommodation can enable him to dosothen 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).”
She said that now that Section 16(3) is not so black and white, neither is any derogation in Section 37(3). Section 37(3) is not a stand-alone provision and must be interpreted in line with the current understanding of Section 16 obligations. Therefore, she contended that fully competent and fully capable must mean, fully competent and capable after reasonable accommodation in light of the need to preserve the operational capacity of the Prison Service.
[Ms Kimber's first submission was presented to the Court prior to the Court of Appeal in theNano Nagle case. Her second submission was presented following the Court of Appeal case.]
Summary of the Respondent’s viewsMr Leonard contended that the Complainant's legal arguments were predicated on a misconceived interpretation of Section 37(3) of the Acts. He submitted that Section 37(3) exempts the Irish Prison Service from providing reasonable accommodation to employees with disabilities who are not fully capable of carrying out the full range of duties that are required from serving officers. He submitted that while it is accepted that the derogation provided under Section 37(3) may be less extensive than that under Section 37(5) it was the Respondent's position that any difference between these Sections does not in any way undermine the clear and unambiguous intention of the Oireachtas, in including Section 37(3) in the Acts. He said that in interpreting the 'level of derogation' or the extent to which the Irish Prison Service is exempted in accordance with Section 37(3) it is essential that the purpose and intention of the provision is interpreted in accordance with the clear intention of the European Directive (Recital 18) upon which the domestic legislative provision is based.
While Mr Leonard accepted the argument that Recital 18 has no primacy over the legislative provision as enacted in Irish law, however, he submitted that where Irish legislation gives effect to wider European Law, the Directive upon which the domestic legislative provision is based, remains the primary guiding tool when interpreting what the domestic legislative provision means and was intended to achieve.
According to Mr Leonard, the requirement in Section 37(3) is that the employee must be "fully capable" of undertaking" the range of functions that they may be called upon to perform so that the operational capacity of the service concerned may be preserved and the Complainant is not medically capable of carrying out the range of functions necessary for the operation of a prison.
Mr Leonard outlined in detail for the Court the regrading option available to the Complainant.
For his part, Counsel for the Respondent, surmised that the facts of theKavanaghcase and the instant one were similar, asKavanaghalso concerned a serving prison officer who due to a disability was unable to carry out the range of functions associated with the position. The Court considered the question“(i)was the Respondent entitled to rely on Section 37(3) in meeting anyclaim of discrimination and (ii) was the Respondent bound to provide appropriate measures in accordance with the provisions of Section 16 to enable the Complainant to continue working in the prison service.”
Mr Leonard stated that the Labour Court in its conclusions refers to Section 37(3) as providing ablanket exemption from any complaint of discrimination andfound that Section37(3) acts as a complete defencein circumstances where an employee of the prison service is not capable of carrying out the full range of duties that are required from serving officers.
Mr Leonard submitted that when implementing and interpreting the requirements of European Directives the Court is required to adopt a purposive or teleological approach whereby the provision must be interpreted in a way that gives effect to the intention of the provision thereby ensuring that the provision has a practical effect.
He said that the Court has adopted this approach inKavanaghand has interpreted Section 37(3) in a manner which makesthe provisionoperativeso thateach provision of a statute is intended to have a purpose and effect.He relied uponMarleasing SAv.La Comercial Internacionale de Alimentacion SA(Case C-106/89) [1990] ECR 1-4135the ECJ said:
It follows that,in applying national law, whether the provisions in question were adopted before or after the directive,the national court called upon to interpret it is required to do so, as far as possible,in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article189[now Article249]of the Treaty."
Mr Leonardsubmitted that the Court in its decision inKavanaghwas entirely consistent with the requirements of the ECJ inMarleasing.
In conclusion, Mr Leonard held thatthe Respondent was exempt from taking active measures to reasonably accommodate an Officer who is incapable of carrying out the full range of functions and duties necessary to maintain the operational capacity of the Prison Service.
Unfortunately, in the Complainant’s case it has been medically established that he is no longer capable of carrying out the range of functions required in the role of Prison Officer. In particular, he is incapable of engaging incontrol and restraint and night duties,which are fundamental aspects of the position.
Discussion and Conclusions of the Court
There is no dispute that the Complainant in this case is a person with a disability. At the date the Complainant referred his claim under the Act, the Chief Medical Officer had deemed him fit to return to non-prisoner contact duties. The Court must consider the position at that point in time, March 2016. On 11thMay 2015, the Chief Medical Officer deemed the Complainant’s disability such that he is unable to perform the normal duties of a Prison Officer. The Complainant claims that his employer is obligated to provide him with reasonable accommodation so as to facilitate him in continuing in employment. Specifically, he claims that he should be provided with access to duties that do not involve contact with prisoners. In advancing his claim he places reliance on Section 16(3) of the Act.
The Respondent relies on Section 37(3) of the Act in claiming that full physical capacity to perform all the duties of a prison office, a central feature of which is the control and supervision of prisoners, is a genuine occupation requirement for employment in the prison service. According to the Respondent, if the Complainant has ceased to have that physical capacity he cannot continue in his employment. In advancing that submission, the Respondent contends that Section 16(3) of the Act, upon which the Complainant relies, does not apply to categories of persons who come within the ambit of Section 37(3), namely members of An Garda Síochana and the Prison Service.
Essentially what is at issue in this case is a question of statutory interpretation and, therefore, a net question of law. The Court must examine whether Section 37(3) of the Act is to be read in conjunction with, and conditional upon, Section 16(3) of the Act. Strong arguments on that question have been advanced by both sides and it appears that there is some ambiguity in the law around that question.
The fundamental requirement in construing a statutory provision is to give effect to the intention of the Oireachtas. That is clear from Section 5 (1) of the Interpretation Act 2005, which provides: -
- 5.— (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—- (i) in the case of an Act to which paragraph (a) of the definition of “Act” inSection 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
- (i) in the case of an Act to which paragraph (a) of the definition of “Act” inSection 2(1) relates, the Oireachtas, or
In the Court’s view, it must seek to ascertain the true intention of the Oireachtas from a reading of the Act as a whole.
The Act gives effect in domestic law to Directive 2000/78/EC of the European Parliament and Council and there is a presumption that the Oireachtas intended to transpose the Directive faithfully. Consequently, the Act must be construed, as far as possible, in light of the wording and purpose of the Directive so as to achieve the objective pursued by the European Legislators as inMarleasing.
Article 4 (1) of the Framework Directive which provides: -
- ‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
There are a number of recitals contained in the preamble to the Directive which provide assistance in identifying the purpose which it is intended to pursue.
Recital 17 provides: -
- This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
- “does not require, in particular, the armed forces and the police, prison or emergency 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 those services'.
Nevertheless, the CJEU in Case C-229/08,Wolf v Stadt Frankfurt am MainECLI:EU:C:2010:3, made reference to Recital 18. That caseinvolved a reference from the German Labour Court in a case concerning a maximum age of 30 for recruitment of fire-fighters. While the referring Court had asked if the rule was permissible under Article 6(1) of the Directive, the Court of Justice dealt with the case in reliance on Recital 18.
Moreover, these recitals have, however, been taken into account by the drafters of the domestic statute.
The overall scheme of the Act is that it makes a number of general provisions which are expressed in language that indicates their applicability to all employees and employers in all situations. The combined effect of Sections 6 and 8 of the Act is to prohibit less favourable treatment of employees on the nine discriminatory grounds. The Act goes on in later provisions to qualify or to offset that general prohibition in particular situations or in respect to particular discriminatory grounds.
Examples of this type of specific exception can be found in Section 17 of the Act, in the case of compliance with certain statutory requirements, and at Sections 25, 26 and 27 which provide a range of exceptions or derogations from the general prohibition of discrimination on grounds of gender in particular occupations and in specified limited circumstances. Section 34 of the Act provides a range of exemptions from the general prohibition of discrimination on the age, family status and disability grounds in particular circumstances and in respect of particular events. Section 35 allows a departure from the general requirement for equal pay as between disabled and able-bodied workers, again in particular circumstances. Section 36 provides an exception from what might otherwise be indirect discrimination on grounds of nationality. Finally, Section 37 provides a range of exceptions and exclusions on various grounds including that of religion in specific employments or circumstances.
The Act starts from the premise that certain characteristics or conditions must always be regarded as irrelevant in the context of employment. But it recognises that there are limited situations in which that general proposition is not true. Consequently, the law makes specific provision for these genuinely exceptional situations without undermining the general principal upon which the Act is predicated.
Section 16 of the Act recognises the limiting effect of disability in employment in providing, in effect, that an employer is not obliged to continue employing a person who, through disability, is unable to undertake the work for which they are employed. The effect of the provision is to assist a person with a disability to overcome the limitations that they have, so as to afford them the right to work. That is in the nature of a general provision, but like other general provisions it admits of exceptions.
Section 37(2) of the Act contains one such exception (which applies not just to disability) in the case of a characteristic which is genuine and determining occupational requirement.
The Court is of the view that the totality Section 37 of the Act should be read and interpreted together. In that regard Subsection (3) of the Section should be read in conjunction with the immediately preceding Subsection (2). When Subsections (2) and (3) are read together the true meaning of Subsection (3) becomes apparent.
These Subsections 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.
Subsection (2) gives effect to Article 4 (1) of the Framework Directive.
Section 37(3) provides:-
- 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.
This Subsection goes on to provide that competence and availability to undertake the full range of functions that he or she may be called upon to provide is an occupational requirement of,inter alia,prison officers. However, unlike the general derogation at Subsection (2) there is no requirement for objective justification. In that context Subsection (3) can properly be construed as a declaratory provision which makes clear that for the purposes of Subsection (2) physical capacity to perform the full range of duties which he or she may be called upon to perform is a genuine and determining occupational requirement of a prison officer.
Therefore, the Court is of the view that Section 37, and in particular Subsections (2) and (3) of that Section should be construed as a self-contained provision which provides a complete defence to a claim of discrimination on grounds of disability. That arises by virtue of the fact that the Act deems full physical capacity to be a genuine and determining occupational requirement for employment in the prison service. That requirement is not limited or circumscribed by a requirement to provide reasonable accommodation in accordance with Section 16 of the Act.
This interpretative approach is in line with the decision of the CJEU inWolf.The Court relied on Recital 18 and also on Article 4(1) of the Directive (recited above) in holding that the physical capabilities required for the job were related to age and as such were a genuine occupational requirement. In this case the Court of Justice took the view that the physical demands of the job combined with the objective of preserving the operational efficacy of the Fire Service was, in and of itself, sufficient objective justification for the impugned age stipulation. While the facts are different to those of the instant case the approach of the CJEU is instructive.
As a general provision Section 16(3) of the Act could be taken as applicable to the prison service as much as to any other employment. However, if that was intended the question arises as to why the Oireachtas considered it necessary to make a specific provision for the Garda Síochána and the Prison Service. In that regard the rules of statutory construction provide a presumption that no provision of a statute is unnecessary or tautologous. It is well settled that a statute cannot be interpreted to produce such a result.
That was explained by Egan J inCork County Council v Whillock[1993] 1 IR 231, where he pointed out that: -
- “There is abundant authority for the proposition that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain”
The only reasonable explanation as to why the legislature considered Section 37(3) necessary is that it was considered that the police force and the prison service is different to the generality of employment and should be specifically legislated for. Where a situation is covered by a general provision and also by a particular provision it must be assumed that the Oireachtas intended the particular provision to apply. It follows, that while Section 16 deals with the general rights and duties of employees and employers in respect to disability, Section 37(3) deals specifically with the Garda Síochana and prison service and that it does so differently. It was, of course, open to the Oireachtas to have included in Section 37(3) a provision similar to that of Section 16(3). Neither Subsection (2) or (3) of Section 37 are qualified by the requirement to provide reasonable accommodation. However, the Oireachtas chose not to include such a provision and the Court cannot import into that provision words that are not there.
Section 37(3) of the Act provides that full physical capacity to undertake all of the functions which a Prison Officer may be called upon to perform is a genuine and determining occupational requirement for employment in the prison service within the meaning of Section 37(2) of the Act. Consequently, the combined effect of both Subsections provides a complete defence to the within claim and questions relating to the provision of reasonable accommodation do not arise.
Determination
For all above reasons the Court is satisfied that Section 37(3) of the Act should be interpreted as a stand-alone provision which is not qualified by or conditional on Section 16(3).
Therefore, the Court finds that Section 37(3) of the Act provides an exemption to the Respondent from a complaint of discrimination in circumstances where the Complainant is not capable of carrying out the full ranges of duties that are required of a Prison Officers.
Accordingly, the Respondent’s appeal succeeds and the Adjudication Officers Decision is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
17 July, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.