EDA2356

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037941 (CA-00049915-001)

BACKGROUND:

The Employer appealed the Determination of the Adjudication Officer to the Labour Court on 13 September 2022. A Labour Court hearing took place on 29 November 2023.  The following is the Court's Determination.

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of the Irish Prison Service (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00037941, dated 16 August 2022) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer held the Ms Caroline O’Connor’s (‘the Complainant’) complaints of discrimination on the disability ground and failure on the part of the Respondent to make reasonable accommodation for her disability were well-founded. The Adjudication Officer awarded compensation of €55,000.00 under the Act. The Respondent appealed from this decision by way of Notice of Appeal received in the Court on 13 September 2022. The Court heard the appeal in Waterford on 20 November 2023 during which the Court took evidence on affirmation from the Complainant and from the following witnesses called by the Respondent: Governor Peter O’Brien, Dr Thomas Donnelly and Mr Seἁn Sullivan.

The Complainant referred her initiating complaint to the Workplace Relations Commission on 15 June 2020. It was agreed at the commencement of the within hearing that the period comprehended by the complaint is, therefore, 15 December 2019 to 15 June 2020. The witnesses’ evidence was largely confined to events that occurred within that period.

The Factual Matrix

It is common case that the Complainant has a disability within the meaning of the Act as she suffers from a cardiac condition known as Supra Ventricular Tachycardia (‘SVT’). The Complainant has been employed by the Respondent as a Prison Administration and Support Officer 1 (‘PASO 1’) in Cork Prison since May 2013. This is an administrative role that is equivalent to that of a Higher Executive Officer but with an additional allowance. In that role, the Complainant is Head of Administration in Cork Prison with oversight of the General Office and the Stores Division in the prison. She manages a team of eight civil servants across the two divisions. Her salary at the material time was €2,519.87 gross per fortnight.

It is also common case that the Respondent was on full notice of the Complainant’s disability since at least September 2019 when she underwent a surgical procedure to address her cardiac condition. The Complainant was absent from work for three weeks at that time recuperating after the procedure and was approved for critical illness sick leave in the circumstances. The Complainant experienced a very serious medical event in the workplace on 19 February 2020 and was attended to by the Chief Nursing Officer in Cork Prison before being treated by advanced paramedics on route to Cork University Hospital. She was due to undergo a repeat cardiac ablation in March 2020 but this was postponed due to the onset of the Covid-19 pandemic.

The Complainant was certified unfit to work on-site in Cork Prison thereafter and has not returned to work since 19 February 2020. She made a number of requests, from late March 2020 onwards, by telephone and by email to Governor O’Brien to be permitted to work from home. The Respondent’s Emergency Response Planning Team had convened on 9 March 2020 and had designated all employees working on-site in prisons as ‘essential workers’. Governor O’Brien engaged with the Head of Personnel, Mr O’Sullivan, in relation to the Complainant’s request to be permitted to work from home. In the light of the nature of her role and her designation as an essential worker, Governor O’Brien decided that it was not possible to facilitate the Complainant’s request although the Complainant had submitted medical certificates from her General Practitioner stating that she was fit to work from home (but not on-site in Cork Prison). It appears that an official working in the Respondent’s Employee Assistance Program also sought, unsuccessfully, to intervene with the Head of Personnel to advance the Complainant’s request to be permitted to work from home in May 2020. In or around that time, Personnel also raised an issue about what it perceived to be an ambiguity in the medical certificates being submitted by the Complainant who continued to be in receipt of critical illness payments while certified fit to work from home. As of the date of the within hearing, the Complainant continues to be certified as unfit to return to her place of work in Cork Prison. Nevertheless, the Respondent confirms that her job will be there for her should her medical condition improve.

The Complainant’s Evidence

The Complainant began her direct evidence by outlining her career to date in the civil service and the various promotions she has secured culminating in her current role with the Respondent based in Cork Prison since 2013. She then moved on and outlined the structure of the administration department in the prison and the various functions performed by that department, which she heads, in support of the Prison Governor.

The second part of the Complainant’s evidence-in-chief focused on her medical condition and the event of 19 February 2020 that was the proximate cause of her absence from work that continues to this day. Counsel for the Complainant opened a series of emails exchanged between the Complainant and Governor O’Brien from 26 March 2020 onwards in which the Complainant repeatedly requested permission to work from home while acknowledging that she was in receipt of Critical Illness Payment. On 26 March, for example, the Complaint wrote notifying Governor O’Brien that her planned surgery had been postponed. She requested the Governor to either consider permitting her to avail herself of the newly introduced Covid Leave or, in the alternative, permit her to work from home. The Governor replied the following day saying: “Hi Caroline, As discussed. There is no agreement on prison staff working from home. Unfortunately it can’t be accommodated.” It is apparent from the Complainant’s evidence that she and the Governor were in regular telephone contact at this time also.

The Complaint wrote a much lengthier email to the Governor on 30 March 2020 in which she recalled the incident of 19 February 2020, restated that the surgery that had been planned for her in March 2020 had been postponed and expressed her concern that her current situation would continue for much longer than anticipated. On that basis she made a number of requests of the Governor, as follows:

“I would now like to make an “Exceptional Circumstances” application please to extend the Critical Illness Sick Leave Provision period due to this unique case.

I am now quite worried as to how long this situation is going to last. My concern is that the current Critical Illness Sick Leave Provision will be consumed as a direct result of the Corona Virus and will dissipate before I even get a date for surgery, which I will then have to undergo; and then recover from.

Alternatively, I understand that a new directive has now been released with regard to the Corona Virus within the Irish Prison Service. I understand that this directive facilitates Civilian Staff working in Longford HQ to work from home. This directive, however, does not appear to cover Prison based Civilian Staff, with the exception of pregnant staff members.

Can I ask you please, to consider this application and to liaise with the Work Force Planning Group to review my unique case under this criteria (sic), as I would certainly be able to undertake work duties from my home while being self isolated (sic) as a result of the Corona Virus while awaiting Heart Surgery.

I could also work on HQ duties such as:1

1. The completion of the National Asset Register ….2

2. I could also liaise with HQ with regard to the advancement of Cork Prison’s Information Channels ….

3. I could also liaise with the HQ Team with regard to the Prison Fleets …

4. I would also welcome any other duty that you wish to assign.

Once I have access to my IPS account, I can also continue my own work duties in Cork Prison via emails, telephone calls and be available via WhatsApp Video calls, if required; or again whatever duties you see fit that you wish me to undertake.”

The Governor replied the following day, 31 March 2020, stating:

“I have raised your requests with HR and received the following advice:

1. Working from home. There is no agreement in place for prison based staff to work from home.

2. Extending Critical Illness Sick Leave Provision period. Your CIP was granted from September 2019 and is valid for 12 months. Accordingly, you are covered until September 2020. However, the paid sick leave limits must still be adhered to (half pay/off pay) and we have no discretion in applying DPER circulars. Your leave does not qualify for any leave under the COVID19 regulations.

Services available to you are Staff Welfare Officer, the Staff Support Officer, the Employee Assistance Service (at 043 3335316 or at eapsupport@irishprisons.ie) or to the Chief Medical Officer.

Another service which may be available to you is Inspire Workplaces. It is a confidential counselling service giving employees support on a range of personal and work related issues. Inspire Workplaces can be contacted 24/7 at 1800 817 433 or at www.inspirewellbeing.org

Please do not hesitate to contact me if you need any further clarification or assistance.”

The Complainant then told the Court that she had continued to submit medical certificates to the Respondent. Counsel exhibited a medical certificate dated 9 April 2020 from the Complainant’s General Practitioner that certifies that the Complainant is, in her GP’s opinion: “FIT TO RETURN TO WORK FROM HOME” from 10 April 2020.

The Complainant said that she next contacted the Governor by email on 15 April 2020 repeating her request to work from home. He replied the following day as follows:

“I regret the answer remains the same. There is no mechanism which allows staff who are too ill to attend the workplace to work from home.”

The Complainant, in a replying email of even date, thanked the Governor for his response and referred to a telephone conversation they had had earlier that afternoon. In this email, the Complainant also states: “This matter is of great importance to me, as I wish to be reasonably accommodated in my circumstances.” She then asked the Governor to provide her with contact details for occupational health, the EAP and the HR HQ official the Governor had been liaising with about the Complainant’s application. The Governor reverted two days later and provided the contact details that had been requested and also raised an issue with regard to the Complainant’s medical certificates as follows:

“Your most recent cert states that you are fit to work from home. As discussed working from home is not an option. Can you please clarify your attendance for week ending 17/4/20.”

The Complainant’s evidence was that she had had a consultation with her GP in April 2020 arising from which the GP wrote to the Respondent by letter dated 22 April 2020. The letter includes the following:

“I feel that [the Complainant] is fit to carry out her normal working tasks but that her travel to Cork and her presence in an environment where she informs me that cases of COVID19 have been confirmed may increase her risk of contracting the virus which is not in her best interest at present. I feel that she is fit to work but not on site in Cork Prison.

If she can be facilitated to honour her administrative work obligations from home, this would be the safest for her. If this cannot be facilitated, I do not think that she is fit to work at Cork Prison until after her planned surgical cardiac treatment is completed.”

On 1 May 2020, the Governor conveyed in an email to the Complainant a request he had received from the Respondent’s Human Resources department seeking clarification about the contents of the medical certificates she had submitted. The request from HR was worded in the following terms:

“I must now request that she provides appropriate certification from her GP which clarifies whether or not she is medically fit to attend at Cork Prison. If that is not provided by close of business on Tuesday, I will contact the GP directly and may have to consider stopping her sick pay.”

The Complainant told the Court that she was very upset on receiving this request and “felt very uncomfortable about having to amend the medical certificates”.

The Complainant’s evidence next turned to her interactions with Mr John F Guiney who is an Employee Assistance Officer with the Respondent. A copy email from Mr Guiney to Mr Sean Sullivan, Personnel Officer, was exhibited. It contains inter alia the following observation about the Complainant’s circumstances:

“Caroline has an administrative role in Cork Prison and has(sic) and is available to work from home if suitable work can be found for her to carry out there. I did advise Caroline that I did not believe that this could be facilitated due to the sensitivity of the work involved. I believe Caroline has been informed of same by her A/Governor Peter O’Brien.”

The Complainant next gave evidence in relation to repeated requests for assistance that she received while at home on sick leave from two of her colleagues on the administrative staff in Cork Prison. She said that she gave the assistance requested using her personal computer.

The Complainant then made reference to the outcome of the meeting of the Respondent’s Emergency Response Planning Team that had taken place in Longford on 9 March 2020. She said that she had understood that the document produced at the meeting (as referenced in Mr Sullivan’s Witness Statement) stipulated that certain personnel, including Prison Service management, could work from home for the duration of the pandemic. The Complainant referred to two named colleagues with disabilities whom she had heard were permitted to work from home, one of whom was blind and the other who had a kidney-related condition.

Under cross-examination, the Complainant was asked about her current medical condition. She confirmed that she remains unfit to return to work in Cork Prison and that she believes she would be putting herself back into “a very stressful situation” were she to return there. She was asked to give details of the period during which she availed herself of Critical Illness Payments. She confirmed that she had received full pay up until July 2020 and half pay thereafter until December 2020. She also accepted that she had been on full pay when she referred her complaint under the Act to the Workplace Relations Commission on 15 June 2020. Asked by Counsel why she referred the complaint on that date she replied she had done so because she wanted to work from home and to continue her duties. Counsel next asked about the medical certificates from her GP the Complainant had submitted stating that she was fit to work from home. The Complainant said in reply that her GP had been worried about Covid and concerned that the Complainant would have to return to hospital if an event occurred while on site at the prison. The Complainant agreed with Counsel that it was Governor O’Brien who had brought the availability of the Critical Illness Protocol to her attention. Counsel put it to the Complainant that the Respondent’s view was that it was not possible for her to perform her job from home and that the job had to be performed on-site. The Complainant disagreed. When asked if she required access to the Prison Information Management System (‘PIMS’) to do her job, she agreed that she did while also accepting that nobody in Cork Prison – not even the Governor – has external access to that system. The Complainant went on to say that she could, in her opinion, have – in any event – continued to lead management meetings remotely with her colleagues in the general office and in the stores division. She said that she also believed that the necessary information from prisoners’ files could have been forwarded to her using screenshots and email. Counsel then asked the Complainant if she had actually explored alternative avenues of potential reasonable accommodation other than working from home. For example, had she familiarised herself with the arrangements that had been put in place in Cork Prison to mitigate the risks of Covid? The Complainant accepted that she had done none of those things.

Counsel put it to the Complainant that she had been permitted to avail herself of Critical Illness Payments on the basis that she was not fit to work. He said, in the Prison Service, ‘not fit to work means you don’t work’.

Governor O’Brien’s Evidence

The witness told the Court that he had thirty-five years’ service with the Respondent; that he was appointed Assistant Governor of Cork Prison in 2016 with responsibility, inter alia, for human resources matters; and was appointed Governor of Cork Prison in November 2020. It was evident from the witness’s evidence that he held the Complainant and her work in very high regard and that they had an excellent working and personal relationship at all times.

The witness referred to the medical procedure the Complainant underwent in September 2019. He told the Court that the Complainant was absent from work for about three weeks after the procedure. He said that he met with the Complainant after that to make arrangements to facilitate her coming through security while wearing a device, following her return to work. He said he also facilitated her with time off for medical appointments and had encouraged her to avail herself of the Critical Illness Protocol so as to avoid any unnecessary stress she might experience as a consequence of exhausting her normal sick leave entitlements. The witness confirmed to the Court that the final decision in relation to whether any individual employee’s circumstances warrant application of the Critical Illness Protocol is ultimately a matter for the Chief Medical Officer (‘the CMO’).

The witness’s evidence next turned to Cork Prison’s excellent record of managing Covid throughout the course of 2020. He told the Court that there had been no outbreak of the virus there for over twelve months after the advent of the pandemic as all new committals were tested and, if found to have Covid, were isolated for fourteen days.

The witness then outlined the steps that were taken to ensure continuity of the administrative work in the Complainant’s section following the resumption of her sick leave in February 2020. The witness’s evidence was that it was not possible to put extra staff in place to replace the Complainant and that, therefore, colleagues were required to act up in order to fulfil the duties associated with her role.

The witness said that he personally arranged to have a number of HR documents requested by the Complainant printed and posted out to her during her sick leave as she did not have any printing facilities at home. He told the Court that although the Complainant was availing herself of the Critical Illness Protocol she sought to amend her status and to change to Covid Leave as the latter wouldn’t have impacted on her normal sick leave entitlements. Following a receipt of a request in this regard from the Complainant, the witness said he contacted the Respondent’s Human Resource Department on her behalf but was informed that the Complainant did not qualify for Covid Leave.

The witness was next asked by Counsel about the feasibility of the Complainant performing her duties from home. He said that in his opinion that this would not have been possible as – in her position as a HEO/PASO 1 – the Complainant was a key member of the management team supporting the Governor. Central to her role, he said, was the oversight and implementation of changes and improvements necessary to secure the future of Cork Prison. He also said that he was extremely familiar with the HEO role in his capacity as Assistant Governor with responsibility for HR matters and understood that the Complainant was responsible for monitoring, supervising and mentoring the staff in her area. That aspect of her work necessitated the completion of many checks that could only be undertaken physically and on-site, in the witness’s opinion. The witness also confirmed, unequivocally, to the Court that no prison-based staff – not even the Governor – has external access to the PIMS system, which the Complainant certainly required access to in order to fully complete core aspects of her job. In this regard, the witness emphasised that the Prison Warrant is the most important document in the prison system and, in the case of each prisoner, it must be physically checked to ensure that the relevant judge’s instructions are correctly followed and applied to PIMS in accordance with the Respondent’s ‘two-eye’ policy.

Counsel directed the witness to the Complainant’s email to him of 30 March 2020 in which she made reference to specific duties that she believed she could perform from home if permitted to do so. The witness observed that the duties the Complainant had listed in her email were a mere fraction of the HEO’s duties. He went on to say that the HEO position is an extremely responsible one that, in his opinion, required the Complainant’s presence on site for the purposes of effectively managing her staff.

The witness also told the Court that he had had several long and detailed telephone conversations with the Complainant as the Covid situation developed in early 2020. According to the witness, the Complainant’s main focus in the course of those conversations revolved around her preference to be permitted to work from home but she had also expressed concerns about commuting long distances between Lismore and Cork. The witness confirmed that the Complainant had a single-occupancy office which was maintained for her at all times and that staff with Covid concerns working in the prison were located in places where they didn’t interact with prisoners.

In response to questions asked of him in cross-examination, the witness confirmed that in his view the role of a prison-based HEO was a very different role to that performed by somebody of the same grade in the Respondent’s head office in Longford. He reiterated that all prison-based staff had been designated as essential workers by the Respondent’s Emergency Response Planning Team that had taken place in Longford on 9 March 2020.

Dr John Donnelly’s Evidence

The witness briefly summarised his training, experience and current role in the CMO’s office where he has worked for over 16 years. He told the Court that one of his areas of responsibility is Cork Prison. He then explained the circumstances in which a civil servant may be referred to the CMO for assessment. He also spoke about the type of interaction that may take place between the CMO and the GP of an employee referred to the CMO, on the one hand, and the referring Human Resources, on the other. In the latter case, the CMO can make suggestions with regards appropriate forms of reasonable accommodation, he said. The CMO’s role, he observed, is largely advisory but HR departments, in his view, tended to follow the CMO’s advice. He then went on to talk about the context in which the government had introduced the Critical Illness Protocol in 2014 to ameliorate the effects, in severe cases, of the cuts to sick pay that had been part of the FEMPI measures.

The witness told the Court that he had received a very detailed medical report in relation to the Complainant’s SVT and formed the view very quickly on reviewing it that she qualified for CIP which he approved in October 2019. Although the Complainant’s case was referred to him again in July 2020, he said, he didn’t have the opportunity to have a consultation with her until October 2020, which was outside the period comprehended by the within appeal.

Mr Sean Sullivan’s Evidence

The witness is the Respondent’s Personnel Officer. He told the Court that he had had no involvement in the Complainant’s application for Critical Illness Payment but had been contacted on a number of occasions by Governor O’Brien about the Complainant’s circumstances and in particular her request to be permitted to work from home. The witness confirmed that he had not been present at the Emergency Response Planning Team meeting on 9 March 2020 as the Personnel Directorate was represented at that meeting by his line manager. The witness said that he understood that it had been decided at the meeting that on-site prison staff – including administrative staff - were designated as essential workers and, therefore, required to attend on-site. He was asked by Counsel whom he understood the reference to ‘prison management’, in the document that was produced following the meeting of 9 March 2020, encompassed. His answer was that the term applied only to ‘governing governors or their substitutes; the most senior people in prisons’ and that it did not apply to employees such as the Complainant.

The witness went onto outline the division of responsibilities between staff in HQ and administrative staff in individual prisons. He said that the latter deal with issues such as catering that are local in nature while the former (originally within a division of the Department of Justice) deal with administrative issues that do not have to be dealt with locally. The witness observed that administrative staff based in prisons benefit from higher pay scales because of the nature of the environment in which their jobs are located.

The witness was then asked by Counsel about his interactions with Governor O’Brien regarding the Complainant. The witness’s evidence was that the Governor had gone the extra mile on behalf of the Complainant and had bypassed the normal channels through which HR queries are normally processed and had come directly to himself in relation to the Complainant’s circumstances. The witness said that the majority of the administrative tasks performed by staff in HQ could be performed remotely; that the Emergency Response Team’s decision – into which all senior governors had an input – had decided that local administrative functions in prison settings could not be performed locally. For that reason, the witness told the Court, the issue of permitting the Complainant to work from home was not one within his remit. The witness stated emphatically that no prison-based staff had been permitted to work from home during the pandemic. He referred to a Mr G (an administrative staff member that the Complainant, in her evidence, had suggested had been permitted to work from home) and clarified that Mr G (now retired) was employed in the HR Division (i.e. a member of HQ staff rather than prison-based administrative staff) and, at the material time, was provided with specialist equipment by way of reasonable accommodation for his disability while working for HQ from a location in Wheatfield Prison.

The witness next spoke to the Respondent’s Accommodations Policy the purpose of which is to facilitate front-line staff to reintegrate into the workplace after a period of absence through working in a non-prisoner-facing role for a period of time. He said the Policy also applies to pregnant employees working on-site in prisons. Finally, in his direct evidence, the Complainant addressed the issue that had arisen about the format of the medical certificates that the Complainant submitted advising that she was fit to work but only from home. The witness said that under the relevant Circular an employee availing of Critical Illness Payment must be too ill to work. He said he was clear that the issue of the Complainant being permitted to work from home had been fully considered and closed off and that Governor O’Brien had assessed her role and decided that it could not be performed remotely.

In cross-examination, the witness was asked about the 2018 DPER Circular in relation to the provision of reasonable accommodation to employees with a disability. The witness confirmed that the Circular in question continued to apply notwithstanding the decisions taken by the Emergency Response Planning Team in 2020. He also repeated his view that Governor O’Brien (at that time Assistant Governor with responsibility for HR in Cork Prison) had fully assessed the Complainant’s request through a series of interactions with the Complainant and had decided that her very specific request could not be facilitated in circumstances where the Governor was satisfied that the Complainant would not be in a position to carry out the full range of her duties other than on-site in the prison itself.

Discussion and Decision

There are two elements to the Complainant’s case. She firstly submits that she was treated less favourably than two named colleagues each with a different disability who were permitted to work from home. Secondly, she submits that the Respondent failed to make reasonable accommodation for her disability.

Alleged Less Favourable Treatment

The Complainant makes reference to two named individuals, Mr G and Mr S, whom she didn’t know personally, but who also worked for the Respondent during the period comprehended by the within claim and whom she says she heard had been permitted to work from home during the pandemic by reason of their respective disabilities. Mr Sullivan’s evidence to the Court was that Mr G worked for HQ and not in a prison setting but was provided with special measures that allowed him to carry on his work for HQ from a location within Wheatfield Prison during the pandemic period. It follows, Mr G is not an appropriate comparator – not being a prison-based employee of the Respondent – and, in fact, performed his work not from home but from a prison setting. Mr Sullivan’s evidence in relation to Mr S was that he was certified as being immunocompromised and therefore qualified for Covid Leave which he availed himself of up until 20 July 2020. The Complainant did not meet the requirements for Covid Leave. It appears Mr S was a prison-based employee, however, his circumstances were not comparable to those of the Complainant as she did not meet the requirements for Covid Leave.

Having regard to the foregoing, in the Courts’ view, the Complainant has not established facts from which an inference of direct discrimination can be drawn with the result that the burden of proof has not shifted to the Respondent within the meaning of s.85A of the Act. The Court, therefore, finds this aspect of the Complainant’s case to be not well-founded.

Failure to Make Reasonable Accommodation

The second element to the Complainant’s case – and the one which Counsel sought most earnestly to advance on her behalf – is that the Respondent failed to make reasonable accommodation for her disability, as required by section 16 of the Act.

Section 16(3) of the Act provides:

“(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 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.”

Counsel submitted that the Respondent had not carried out any assessment of the Complainant’s actual circumstances or of the cost of accommodating those circumstances and had not engaged with her specific requests for accommodation or with the medical reports she submitted in support of them.

It appears to the Court from the Complainant’s own evidence that she sought a range of different forms of accommodation from the Respondent, including: 

(i)            an extension to the period for which she could receive Critical Illness Sick Leave so as to ensure that she could avail of ordinary sick leave whenever it became possible to have her second operation;

(ii)           to be placed on Covid Leave – which again would not impact on her entitlements to ordinary paid sick leave;

(iii)          to work from home but doing a specific duties only such as those listed in her email of 30 March 2020 to Governor O’Brien, along with any other duties the Governor might assign her.

It is understandable that the Complainant was concerned that she would have exhausted her sick leave entitlements when eventually her second surgery was rescheduled and she would be unpaid for any period of recovery thereafter. She made a number of proposals to the Respondent to obviate this eventuality, none of which was, however, feasible. Her request for an extension to the period of Critical Illness Sick Pay couldn’t be facilitated as the Respondent had no discretion regarding the application of the relevant Circular. Neither was it in the Respondent's gift to permit her to avail herself of Covid Leave as she simply didn’t qualify for it. The Complainant’s concerns about possibly having to remain on unpaid leave for an extended period while recovering from anticipated surgery no doubt, led to the very unusual situation that developed whereby she was availing herself of Critical Illness Sick Pay while simultaneously asserting, through the medical certificates she furnished to the Respondent via her GP, that she was fit to work - but from home only and not on site in Cork Prison. The Respondent is emphatic that Governor O’Brien supported the Complainant in every way possible, including bringing the Critical Illness Protocol to her attention when she first became ill and taking the necessary steps to facilitate her access to that scheme at any early stage. Furthermore, the Respondent submits that the Complainant did avail herself of the scheme and continued to do so well beyond the date on which she submitted her initiating complaint under the Act.

The Court acknowledges the enthusiasm the Complainant demonstrated for her work generally and also her willingness to resume performing as much as possible of her role from home, had she been permitted to do so. However, her case, taken at its height, is that she was certified fit to do her job, but only from home. It follows that she is not claiming her disability prevented her from doing her job per se but it did prevent her from travelling on daily basis between Listowel and Cork to do so.

The evidence before the Court is that the Complainant was fully advised by Governor O’Brien and Mr Guiney, the EAP Officer, that the sensitive elements of her role that involved access to prisoner files and the PIMS could not be performed other than on the premises in Cork Prison. The Governor confirmed that nobody – not even the Prison Governor – has external access to the PIMS.  No evidence was adduced on behalf of the Complainant that in any way called into question the veracity of the position outlined by Governor O’Brien. The Governor stressed the importance of a person in the Complainant’s role having access to that system in order to ensure that a judge’s directions are properly recorded and implemented in the case of each individual prisoner. The Governor, who was clearly both professionally and personally well-disposed to the Complainant, the Court was told, went ‘the extra mile’ on her behalf by contacting Mr Sullivan directly in relation to Complainant’s varying requests. The Governor himself, however, said he was totally familiar with all aspects of the Complainant's role and had concluded that it was a role that could not be performed externally. It follows, in the Court’s view, that had the Respondent been disposed to accept the medical certificates submitted by the Complainant’s GP at face value and allow her to come off sick leave and commence performing work from home, the Complainant could only have been performing a different role from that which she was employed to perform. She would effectively have been redeployed in those circumstances, into a job that comprised a bespoke range of duties such as those she listed in her email of 30 March 2020 to Governor O’Brien. Charleton J stated in very clear terms at paragraph 10 of his judgment in Nano Nagle School v Daly [2019] 3 IR 369 that an employer’s obligations under section 16 do not extend to redeploying an employee with a disability into a job other than that which they were hired to perform.

Having regard to the foregoing, the Court finds that the Respondent did not fail in its obligations under section 16 to make reasonable accommodation for the Complainant’s disability, as claimed. The decision of the Adjudication Officer is, therefore, set aside and the Respondent’s appeal from that decision succeeds.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
3 January 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.