EDA2434

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00002267 (CA-00003047-001)

BACKGROUND:

The employer appealed the Determination of the Adjudication Officer to the Labour Court

A Labour Court hearing took place on 11 June 2024.

The following is the Court’s Determination.

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 they had failed to consider the provision of reasonable accommodation to Mr. Cunningham, 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, Mr. Cunningham 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.  The relevant period for the purpose of the Act is 5th September 2015 to 4th March 2016.

General Background to the hearing of the complaint.

The Labour Court first issued a decision in this case on 17th July 2018. That decision was appealed on a point of law to the High Court who upheld the appeal, which was then appealed to the Court of Appeal, but subsequently withdrawn.  The decision of the High Court referred the matter   back to a different division of the Labour Court. By email of 29th November 2021, the Complainant’s representative contacted the Labour Court seeking to have the case listed for hearing on foot of the withdrawal by the Respondent of its appeal to the Court of Appeal.

The case was first listed for hearing by the Labour Court on 21st and 22nd March 2022. However, the Court received a request from one of the parties seeking a postponement. The postponement was not granted, but the proposed hearing was changed to a case management conference. Following that conference, the case was then listed for hearing on 21st and 22nd July 2022 but was again postponed at the request of one of the parties.

 The Court then scheduled the case for hearing from 11th to 13th October 2022 and the hearing proceeded on those dates. It was agreed at that hearing with the parties, that the case would be further scheduled for a one-day hearing in January 2023, and a one-day hearing in February 2023. Hearings were held on the 26th January 2023 and 7th March 2023, and further hearings were scheduled for 12th and 13th September 2023.

 At the hearing in September new information came to light in the form of a letter from the Complainant’s Consultant Neurosurgeon Mr Murphy, which stated that the Complainant was fit for duty without restriction and stating that he (Mr Murphy) had given the same advice back in 2015, i.e. that the Complainant was fit for duty without restriction at that point.  In discussion with the parties at the September hearing it was agreed to adjourn the case for three weeks to allow the Complainant to be medically assessed by the CMO, and in advance of same, the Complainant was to provide all relevant medical records to the CMO. The parties disagree as to whether or not this was fully complied with.

 During the intervening period the Court had cause to write to both parties as the period of office of a member of the division who had heard the case had expired and consequently the division could no longer hear the case. This necessitated the appointing of a new division of the Court to hear the case, with the knock-on consequence of the case having to be reheard from the start.  The Court invited the parties to a case management conference in January 2024. At that case management conference, the parties agreed that the Court should hear from the Complainant, Mr Lawlor the Complainants GP, his Consultant Neurosurgeon Mr Murphy and the CMO Dr Lim.

It was agreed that the Court would hear the parties on the preliminary issue of whether or not the Complainant had established a prima facia case of discrimination on the ground of disability during the relevant time period. To that end it was agreed to schedule a two-day hearing on the 24th and 25th April 2024, to hear the preliminary issue. Five provisional dates were set aside in June to hear the substantive case if required.  The Court also advised that it could facilitate a hybrid hearing and would issue witness subpoena’s if required.  The Court emailed both parties on the 25th January 2024 confirming the above process.

 By letter of the 23rd April 2024, the Court was informed by IHREC, the Complainant’s representatives that Mr Murphy the Complainant’s Consultant Neurosurgeon would not be attending on either the 24th or 25th April 2024, as he was out of the country. It stated that Mr Murphy had indicated that he was available during the dates blocked out for June 2024. The letter went on say that he had informed IHREC in February 2024, that he would be out of the country and not available to give evidence either in person or online. It also went on to say that the Complainant’s GP Dr Lawlor was only available to give evidence on the 25th April 2024.

No explanation was provided as to why this information was not relayed to the Court and the Respondent when it first came to IHREC’s attention in February. The Court first became aware of the issue on the afternoon before the scheduled hearing.  The IHREC letter stated that as Dr Lim had provided an updated report since the matter last came before the Court, Counsel for the Complainant would be submitting that the Court had sufficient evidence before it to decide the preliminary issue.

 Later the same day the Court received a letter from the Respondent’s representatives expressing concern that Mr Murphy would not be available to give evidence, and that Dr Lawlor was only available on the second day, in circumstances, where it had been agreed at case management in January 2024 that the Complainant’s witnesses would go first.

 At the hearing the next day 25th April 2024, Counsel for the Respondent submitted that Mr Murphy’s evidence was crucial and noting that he had indicated that he would be available in June they were requesting an adjournment to facilitate his attendance.  It was agreed with the parties that the hearing would be adjourned to the 11th and 12th June 2024 to facilitate the attendance of all the witnesses.  Ms Lynch SC on behalf of the Respondent indicated to the Court that, if necessary, they would seek a witness subpoena for Mr Murphy.   Shortly after the hearing, the Court was contacted by the Complainant’s representative to say that his GP Dr Lawlor was not available on any of the dates in June 2024. However, they indicated they were happy to proceed without Dr Lawlor’s oral evidence relying on the medical records submitted by Dr Lawlor.

 In advance of the hearing, it was agreed with the parties that their submissions would be taken as read and they would both give a brief overview of their position before the Court moved to hear witness evidence. At the commencement of the hearing on the 11th June 2024, the Chair reminded the parties that the complaint before it was of discrimination on the grounds of disability by not providing reasonable accommodation. The most recent date of discrimination identified by the Complainant on the form he submitted to the WRC was 29th October 2015. The complaint was submitted to the WRC on 4th March 2016, therefore, the reckonable period for the purpose of the Act is 5th September 2015 to 4th March 2016.

Summary of Complainant’s submission.

The Complainant has been employed as a Prison Officer with the Respondent since 5th March 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.

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 contact duties. In her report of 11 May 2015 Dr Lim stated

“ I have discussed his case with the CMO and we feel that for the initial three months Mr. Cunningham should be assigned to non-prisoner contact duties to allow for an adequate rehabilitation period following his surgery. All going well, if this can be facilitated, he should be fit to resume work within the next three to four weeks”

 Giving an expected date of return to work of mid-June 2024.  Dr Lim in her report went on to say that

“Going forward, our opinion is that Mr. Cunningham should be excluded from all control and restraint duties/training. As I mentioned in my previous correspondence to you (5/11/13), I understand that Mr. Cunningham has a mutual understanding with his Governor regarding limiting his control and restraint duties. I also would suggest that Mr. Cunningham is excluded from night shifts duties. He tells me he is rostered for night shifts but swaps out of them with his colleagues and has not worked nights since 2011. He does not intend to work nights going forward” In the final paragraphs Dr Lim states “your referral also asks if his absence may lead to more absences in the future. My opinion is that back pain, by its nature tend to recur and therefore, he is likely to have future absences. He may also require further surgery. It is management decision as to whether you can find a suitable position for him based on our recommendation “

 The Complainant in his written submission to the Court states that he sought to engage with the Respondent around his return to work on the following occasions. He had a meeting with Governor Baker on the 12th June 2015 who advised that he had been contacted by HR but did not believe he could facilitate a return to work by the Complainant on restricted duties. A further meeting was held on 13th July 2015 with Governor Baker and Mr Sean Sullivan (Assistant Principal). The Complainant felt that meeting went well and that Mr Sullivan and Mr Baker would prepare a long-term plan to facilitate his return to work. When he was asked at that meeting if he would consider ill-health retirement, he informed the parties that he was totally against the idea. On the 15th October 2015 he received correspondence from Governor Baker advising that “the only option that is available to you is for you to return to work under the terms and conditions of the accommodation policy”.  The Respondent’s Accommodations Policy states: -

 "Each period of Rehabilitative/Restricted duties should not exceed 3 months. Only in the most exceptional circumstances will accommodation of this nature extend beyond 3 months and only on the recommendation of the CMO having regard to the operational needs of the Irish Prison Service.".

 A further meeting was held with Mr Sullivan on the 29th October 2015, who advised 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. The Complainant in his submission to the Court stated that he felt this was not acceptable and informed Mr O Sullivan of that at that meeting. 

 Ms Kimber SC on behalf of the Complainant submitted that the Complainant is not at work because of a decision of the Respondent following a report from the CMO relating to his fitness to return to work.  Therefore, he has been treated differently on the basis of a disability or an imputed disability.

The CMO’s report of 11th May 2015 references his back surgery of 17th February 2015.  Ms Kimber SC submitted that the Complainant will say that when he attended with Dr Lim prior to that report, he brought along scans, medical records and the letter from Mr Murphy dated 8th April 2015, but he did not give the letter to Dr Lim.  Arising from Dr Lim’s report, the position is that the Respondent did not let him back to work.

An issue had arisen in respect of a letter from Mr Murphy in June 2023 which referenced back to 2015 and the Respondent seems to suggest that Dr Lim’s assessment was made without all the facts because she did not have the letter from the Complainant’s Consultant Neurosurgeon Mr Murphy. In 2015 there was a letter dated 8th April 2015 to Dr Lawlor the Complainants GP from Mr Murphy which, while indicating that he should return to work in a week or two, also cautioned against lifting heavy weights of more than 20 kg.

 Dr Lim in her latest report dated 14th March 2024, noting that she did not receive Mr Murphy’s report from April 2015, goes on to say “ I have since received  a copy of Mr Murphy’s medical report addressed to Dr Lawlor dated 8th April 2015. This report clearly outlined activities to avoid on his return to work as a Prison Officer. In my opinion, my advice in 2015 is congruent with Mr Murphy’s advice i.e. engaging in C&R duties would be contrary to Mr Murphy’s medical advice and his recommended restrictions”.    Dr Lim reaffirming her 2015 opinion following a case discussion with the CMO states that the Complainant “is not fit for the full range of prison officer duties. This decision is based upon his known back pathology and knowledge of other medical illnesses”

Ms Kimber SC submitted that the Respondent has raised a preliminary issue as to whether the alleged discriminatory treatment was grounded upon a relevant disability. It is an unanswerable case that the Respondent treated the Complainant less favourably on foot of the CMO report and took the view that he had a relevant disability.

 It is clear, she said, from the medical reports that both Dr Lim and the Complainant’s Consultant Mr Murphy, expected back in 2015, that he would return to work, and that he would return to work on a restricted basis.  The only reason why Mr Cunningham was not back at work was because of the restrictive nature of the Respondent’s accommodation policy.

 Ms Kimber SC submitted that in her sworn evidence Dr Lim confirmed that even if she had been aware of Mr Murphy’s April 2015 report it would not have made a difference to her report of May 2015. Dr Lim is an expert in Occupational Work and reviewed the Complainant from that perspective. She was familiar with his history and the role of a prison officer. She took a precautionary approach to the duties that Mr Cunningham would perform on his return to work, and in particular that he should not perform control and restraint duties.

Ms Kimber SC submitted that the timing of the CMO assessment with reference to the timing of the advice of Dr Murphy is key to an understanding that Mr Cunningham did not conceal any advice from the CMO. Ms Kimber SC took the Court through a timeline of events starting from when Mr Murphy first saw Mr Cunningham in October 2014, up to May 2016 when Mr Murphy wrote to the Complaint on 2nd May 2016, stating he had received correspondence from Dr Lawlor notifying him of an up-to-date MRI scan. It was submitted that it is clear from the timeline, that when the Complainant attended the CMO on 29th April 2015, the only advice from Dr Murphy was that he could return to work but must take a cautious approach to lifting weights more than 20kg. Ms Kimber SC went on to say that the CMO and Mr Murphy were each looking at a return to work from the perspective of their own speciality. The Respondent took the decision that the Complainant would not be reasonably accommodated based on Dr Lim’s report of 11 May 2015.

 Ms Kimber SC submitted that the Complainant does not agree with the concept of cognisable period, a term used by the Court when referring to the time limitations contained in the Act in the course of the hearing, as this has no statutory definition or application. The discrimination in the present case does not fall outside any statutory limitation period as it is ongoing discrimination on grounds of disability.

The Complainant was denied a return to work at the relevant time, and he continues to be denied a return to work on the basis that he could not come within the Respondent accommodations policy. Discrimination is therefore ongoing.

Summary of Respondent’s submission.

 Ms Lynch SC on behalf of the Respondent submitted that the Court set out at its pre-hearing case management conference that it intended to make a preliminary ruling on the validity of the medical basis for the Complainants case.

 The Complainant must show that he was discriminated on the grounds of disability and that there was a failure by the Respondent to provide reasonable accommodation. In the first instance it is for the Complainant to establish that that he had a disability, and to raise an inference of discrimination during the time limit period provided for by the Act.

 The Complainant was referred to the Office of the CMO in April 2015. Ms Lynch SC submitted that there was an obligation on the Complainant to make a full and accurate disclosure to Dr Lim and to ensure she had all his up-to-date medical information.

Dr Lim following her meeting with the Complainant, issued her report on the 11th May 2015 and forwarded same to the Respondent. In that report she stated, I have discussed his case with the CMO, and we feel that for the initial three months Mr Cunningham should be assigned to non-prisoner contact duties to allow for an adequate rehabilitation period following his surgery. All going well, if this can be facilitated, he should be fit to resume work within the next three to four weeks.”  It went on to state “Going forward our opinion is that Mr Cunningham should be excluded from all control and restraint duties/training.

 The Respondent accepted Dr Lim’s report.It had no reason to second guess same or query the extent of the medical history provided by the Complainant. The Complainant also accepted the report which had serious implications for his ability to continue serving as a Prison Officer and did not challenge it in any way.

In or about August 2023, the Respondent was provided with a medical report by IHREC the Complainant’s representatives.   The report dated 23rd June 2023 was prepared by Mr Martin Murphy Consultant Neurosurgeon & Spine Surgeon, who had performed the Complainant’s third back surgery in February 2015. In his report of 23rd June 2023, Mr Murphy stated

 “As part of the follow-up advice, I gave him in 2015 I did clear him to return to work as a Prison Officer in an unrestricted fashion but did give him some common-sense advice regarding repetitive heavy lifting activities in non-ergonomic positions – the type of advice that I’m sure every employer gives their employees or any people who are required to work on the premise. My advice today remains the same as in 2015.”

Had this information been available to the Respondent at the relevant time the Complainant could have been facilitated with a full return to work.  It is important to note that the Complainant sought this report from Mr Murphy and initially sought to rely on it. In a letter from IHREC the Complainant’s representative to the Respondent dated 1st August 2023, reliance was placed on Mr Murphy’s opinion that the Complainant could return to work in an unrestricted capacity, and it was stated that the Complainant should have been returned to work previously. The Complainant is now seeking to resile from Mr Murphy’s letter in circumstances where it is unhelpful to the case being advanced by him in these proceedings. The Complainant elected not to call Mr Murphy as a witness.

The Respondent called Mr Murphy as a witness, and it was his evidence that Mr Cunningham was fit to return to work in April 2015.

It is for the Complainant to identify the medical evidence relied upon by him regarding his disability at the relevant time in 2015. The Complainant initially sought to rely upon the opinion of Mr Murphy to assert that he is and was always fit to return to work. He has now resiled from that position and seeks instead to solely rely on Dr Lim’s report dated 11th May 2015.

The Complainant never disclosed to Dr Lim or to his employer the Respondent, that Mr Murphy had discussed his return to work with him and advised that he could return to work with only a caution about lifting weights over 20kg.

The Respondent following receipt of this information, formed the view that the Complainant did not have a valid basis for his complaint and brought their concerns to the attention of the Labour Court when the case resumed in September 2023.

Ms Lynch SC submitted that the Complainant is relying on Dr Lim’s report in May 2015 and is not calling evidence to establish his disability at the relevant time. She submitted that the fact that the contents of Mr Murphy’s report is at odds with Dr Lim’s assessment in 2015 raises significant questions to be considered at the hearing of the preliminary issue.

Ms Lynch SC opened the case of Hickey v Houses of the Oireachtas EDA1918 to the Court noting that in that case the Labour Court stated that “No medical report was opened to the Court to establish clearly and unequivocally the extent and the duration of the Complainant’s illness or that that illness was a chronic illness within the meaning of paragraph (b) of the definition of “disability” for the purpose of the Act”.  In the case of A Worker v A Retail Company EDA2012 the Labour Court held  

“where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left to rely entirely on the written evidence”.  The Court went on to say “the Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this fall on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question, As the Complainant has not met the burden of proof, it follows that the claim must fail”.

 The burden of proving the Complainant had a disability within the meaning of the Act is exclusively on the Complainant, and in circumstances where the fact of his having a disability is in dispute, the onus is on him to produce medical evidence to confirm he had a disability at the material time. The failure of the Complainant to disclose the information, and advice of his treating surgeon Mr Murphy to either Dr Lim or the Respondent has led to a lack of clarity regarding his condition at the relevant time. The Complainant cannot benefit from the lack of clarity on foot of material non-disclosure by him. He has not discharged the burden of proving the nature of his disability at the relevant time.

Witness evidence

 The Complainant did not give evidence or call any witnesses in support of his contention that he had a disability within the meaning of the Act, at the relevant time. The Respondent called two witnesses.

 The first witness called by Ms Lynch SC on behalf of the Respondent was Mr Murphy Consultant Neurosurgeon. Mr Murphy set out his qualifications and where he practised. He confirmed that he only treats spinal injuries and recurrent spinal injuries. The Complainant was referred to him by a colleague in early to mid-2014.  He confirmed that he carried out surgery on the Complainant and in his evidence informed the Court that post surgery, he had reviewed the Complainant in April 2015, and November 2015. Mr Murphy outlined for the benefit of the Court that he had treated people with similar issues to the Complainant who worked in areas that required physical exertion such as athletes, armed forces, firefighters, people involved in high contact sport, prison officers and they have all returned to work without restriction.

 In response to a question from Ms Lynch SC as to his view of the Complainant returning to work and being required to do control and restraint techniques. Mr Murphy stated that he was familiar with control and restraint techniques as he has a black belt in Judo and that he was happy for the Complainant to return to work. If he had not been happy for him to return to work, he would have said it in his letter of April 2015. He confirmed that when he saw the Complainant again in November 2015, there was nothing in his opinion that would render the Complainant unfit for his role as a prison officer.

 Mr Murphy stated that his advice in April 2015 was two months following the spinal surgery and was correct at that point in time when he advised not to lift weights over 20kg. However, he was happy over the next one, two, three months that he would return to duties and certainly within six months. He confirmed that he would not have placed any restrictions on the Complainant returning to full duties in a potential combat role. He went on to say that from a medical perspective recovery is a spectrum it’s a slow steady pace. The vast majority of the symptom relief occurs in the first six to eight weeks, but he was happy for the Complainant to return to work. In his view issues of this nature do not necessarily mean you are disabled. The fact that you are running into problems is not due to activities that are being carried out but can arise from degeneration. Mr Murphy stated that he would encourage his patients to stay active.

In response to a question from Ms Kimber SC under cross examination Mr Murphy confirmed that he first saw the Complainant in October 2014 and was aware that he had two previous surgeries. Mr Murphy confirmed that he performed surgery in February 2015. He wrote a letter to Dr Lawlor on 17th February 2015 giving an update post-surgery. It was a standard letter setting out the follow up for the few days post-surgery. First post-op consultation was 8th April 2015, then second one November 2015. The letter of 8th April 2015 was written the same day as he saw the Complainant for the post -op consultation. He dictated the letter after seeing the Complainant and the advice was correct at that time. He would have told the Complainant don’t lift above 20kg and adopt a cautious approach to lifting weights. The email he received from the Complainant of 9th June 2023 more or less reiterated what was in his letter of 8th April 2015.

 Mr Murphy stated that after the consultation on 2nd November 2015, he wrote another letter to the Complainant’s GP stating that the Complainant had improved since April 2015. Mr Murphy confirmed that he would have known at that stage that the Complainant was on pain meds but not exactly what pain meds he was on.

 Ms Kimber SC took Mr Murphy to the letter dated 11/5/2015 from the CMO. She put it to him that the Complainant’s appointment with the CMO was after he had issued his letter of 8th April as that appointment was on 29th April 2015. Mr Murphy accepted that but stated that he would not agree with the words “therefore he is likely to have future absences” in the CMO’s letter. While it was possible he might have more issues, he did not believe it was correct to say ‘likely’ he would have more issues.  He confirmed that he would not agree that he should be restricted from carrying out control and restraint duties.

During re-examination Ms Lynch SC asked Mr Murphy if he could recall discussing any specific restrictions with the Complainant in the context of his return to work such as non- contact with prisoners as recommended by Dr Lim. Mr Murphy stated that he would have had an awareness of the job of a prison officer back in 2015, and he was happy for the Complainant to return to that role, a role for which he was trained. Mr Murphy confirmed that he would not agree that the Complainant should be excluded from all control and restraint duties/training going forward.

The next witness called by Ms Lynch for the Respondent was Dr Lim Occupational Health Specialist, Office of the Chief Medical Officer. Dr Lim informed the Court of her qualifications.

 Dr Lim confirmed that the Complainant attended at her office on 29th April 2015 and that she issued her report on the 11th May 2015.   She stated that she took a detailed medical history from the Complainant and asked about his symptoms. She confirmed that she carried out a physical medical examination on the day.  It was Dr Lim’s evidence that when the Complainant attended on the 29th April 2015, the latest report she had on record from Mr Murphy was dated 17th February 2015 two days after the Complainant’s surgery. The letter outlined the surgery that Mr Murphy had carried out and instructions to the GP on how to manage the wounds arising from the surgery.

 Dr Lim confirmed that she did not have the report of 8th April 2015 at that time, nor is it recorded in her notes that the Complainant mentioned he had it. It was her evidence that she had no recollection of him mentioning it, and that if he had she would have put it in her notes. In response to a question from Ms Lynch SC as to how she carried out a detailed medical history and assessment of his current symptoms on the 29th April 2015, Dr Lim stated that she would have asked the Complainant to tell her his medical history and how he was symptom wise. It was her evidence that she knew the Complainant, so she knew everything he was telling her was truthful.  She confirmed that she would take the Complainant’s statements at face value.

Dr Lim went on to say there was nothing in her notes to show that the Complainant had discussed with her his attendance with Mr Murphy on the 8th April 2015 or the advice Mr Murphy had given in respect of returning to work. Dr Lim confirmed that she would not normally seek a report from a surgeon that she would make her own decision with regards his fitness to work, and that she would rarely speak to a surgeon.  It was her evidence that her notes seemed to indicate that Mr Cunningham had been discharged by Mr Murphy at that point in time. Dr Lim at one point in her evidence accepted that it would have been helpful to know how he was presenting to his surgeon.  However, she stated that she did not believe it would have changed her view in terms of the Complainant carrying out control and restraint duties.

Dr Lim accepted that Mr Murphy was a specialist in the area, but it was her evidence that surgeons do not provide ongoing care.  Dr Lim stated that she accepted that her opinion is different to Mr Murphys at the relevant time. She accepted that there can be discussions with specialists, but it was not something that she would normally do. Dr Lim stated that there was nothing in her file showing that the Complainant had looked for a follow up meeting with her, nor did he mention any further attendance with Mr Murphy.

Dr Lim confirmed that she did not get the MRI and scans from June 2015. She assumed that the Complainant had returned to work and was working away but was not subject to control and restraint duties. Dr Lim confirmed that she was not aware that back in October 2014, Dr Murphy had indicated that the Complainant had no left side symptoms, or that his report of 2nd November 2015 only referred to right side symptoms. Dr Lim confirmed that it would have been helpful to know this.

Dr Lim stated that she was aware the Complainant was on meds as he had told her. In respect of her notes, she accepted that the Complainant was sent for MRI and scans and saw Mr Murphy later, but she was not told about that. Dr Lim stated that she was relying on what the Complainant told her, and she was surprised that he did not tell her about seeing Mr Murphy in April 2015 or that he was still under Mr Murphy’s care.

 In response to a question under cross examination from Ms Kimber SC Dr Lim confirmed that her speciality is Occupational Health and that she specialises in workplace health. She confirmed that she is familiar with safety critical workplaces. She confirmed that she accepts that Mr Murphy is a specialist in his field. It was her evidence that the Complainant had 10 consultations with the CMO’s Office since October 2010. She had first seen him on 29th March 2012 after his second injury at work which occurred in December 2011. Prior to 2012 he was seen once by the CMO’s office. The letter of 5th November 2013 was the third time she had seen him and the eight time the office had seen him.

 Dr Lim stated that she would have a carried out a detailed medical review.  She would have reviewed his past medical history in relation to his back from records they had and discussions with the Complainant. She would ask about his current symptoms, and she would take at face value what he would say about his medical history. Dr Lim stated he would tell her what medication he was on, about his normal routine, activities he would carry out as part of daily living and his assessment of his medical state. She confirmed that she would have carried out a physical exam both lying down and standing up.

It was Dr Lim’s evidence that a decision was made in 2013 to exclude the Complainant from control and restraint duties for a period of time. Dr Lim‘s evidence was that knowing that decision had been made in 2013, and knowing that he had three surgeries, she decided to put him out of harm’s way by recommending that he not carry out any control and restraint  duties . She believed if he continued to do control and restraint duties in a decade he would have to get fusion surgery. Dr Lim stated that she discussed it with four other Doctor’s in the department.

Ms Kimber SC put it to her that the Complainant in his evidence to the Court will say he brought the letter of the 8th April 2015 with him to the appointment with her on the 29th April 2015. Dr Lim was very clear that she most definitely had not seen the letter from Mr Murphy of the 8th  April 2015 until it came to light this year. The Complainant had requested a copy of his file three times so he would have known that it was not on his file. Dr Lim confirmed that at the meeting in April 2015, she would have been aware of the meds he was on and that she had scans up to a certain point in time. She stated that she was aware of the hazards and occupational injuries that arise in the role of prison officer. It was her evidence that she wanted to stave off the need for the Complainant to have to have spinal fusion surgery for as long as possible. It was her understanding from him that he had an agreement with the Governor to the effect he would only do non-prison contact duties, and that he was advised to stand back and not get involved if something happened. Dr Lim stated that he would have to be pain free and off meds before returning to duty.

In response to a question from Ms Kimber SC, Dr Lim stated, in terms of control and restraint she understands that it is used when a prisoner is not compliant, and the situation cannot be deescalated. Dr Lim confirmed that she would not ask a surgeon about fitness to work.  It was her evidence that this case was a complex case and made more complex by the fact the Complainant had three surgeries.  She put in the piece about night duties in her report as she respected his decision that he did not want to do night duties. She said that the Respondent’s return-to-work policy had three tiers in respect of prisoner contact ranging from no contact to low risk to full contact

  In response to a question under re-examination from Ms Lynch SC Dr Lim stated that it was the Complainant’s desire not to be involved in control and restraint training, and he had stated that he did not intend to carry out night duties going forward. She confirmed that she accepted what he said and put it in her report. In response to a clarification sought by the Court, Dr Lim confirmed that the recommendation that he does not do night duties did not arise from any medical assessment, but was in her report because the Complainant had requested it.

 Relevant Law

 Section 2 of the Act

 Interpretation

(1) In this Act, unless the context otherwise requires—

[…];

“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;

[“discrimination” includes the issue of an instruction to discriminate […] and cognate words shall be construed; accordingly,]

“the discriminatory grounds” has the meaning given by section 6(2);

 Section 6

 Discrimination for the purposes of this Act

[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different [civil] status (in this Act referred to as “the [civil] status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

[(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

(3)

(a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

(b) Notwithstanding subsection (1) and section 37(2), an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

[(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.]

(d) [Amending section 2 of the Unfair Dismissals Act 1977].

(4) The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.

Section16.

Nature and extent of employer's obligations in certain cases

(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.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

[(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.]

(4) In subsection (3)—

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.

[“appropriate measures”, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;]

 Section77.

The forum for seeking redress

(1) [A person who claims—

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term,

(d) not to be receiving a benefit under an equality clause,

may, subject to subsections (3) to (9), seek redress by referring the case to the [Director General].]

(2) […]

[(3) If the grounds for such a claim arise—

(a) under Part III, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or the Equal Treatment Directive is relevant,

then, subject to subsections (4) to (9), the person making the claim may seek redress by referring the case to the Circuit Court instead of to the [Director General].]

[(4) In this Part, in relation to a case referred under any provision of this section—

(a) “the complainant” means—

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent, and]

(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.

[(5)

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the [Director General] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Section 85A

 Burden of Proof

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the [Commission] to the [Director General] under section 85(1), facts are established by or on behalf of the [Commission] from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), insofar as they related to proceedings under this Act, are revoked.]

Issue to be determined

 The questions for the Court to consider are

a) Has the Complainant met the burden of proof to demonstrate that at the relevant time he had a disability as defined by the Act? If the answer to that is yes then,

b) Did that disability require a reasonable accommodation, if the answer to that is yes then

c) Did the Respondent fail to provide a reasonable accommodation resulting in a breach of the Act.

In considering point c ) a further question arises as to whether or not in circumstance where a Complainant either deliberately or through omission does not present the Respondent with all information that is within their knowledge at the pertinent time relating to their disability, can a Respondent be found to have discriminated against them by not providing reasonable accommodation.

 Facts not in dispute

The following facts are not in dispute between the parties.

The Complainant in his WRC form identified 29th October 2015 as the latest date of discrimination.

The Complainant had his third back surgery on 17th February 2015

 The Complainant was seen by his surgeon 8th April 2015 who discussed with him returning to work and issued a letter to the Complainant’s GP on that date, stating he was fit to return to work but should not lift weight over 20kg.

The Complainant met with Dr Lim CMO on 29th April 2015.

Dr Lim issued a report dated 11th May 2015, which advised that for the initial three months of his return to work he should be assigned to non-prisoner contact. Then went on to state that she understood that he had an arrangement with his Governor which limited his involvement in control and restraint, and in her view going forward he should be excluded from all control and restraint duties and excluded from night shifts.

The Complainant did not inform the CMO at the meeting on the 29th April 2015 that he had a discussion with his Consultant about returning to work, or that his Consultant had not raised any concerns, other than cautioning about lifting weights in excess of 20kg on his return to work. The Complainant did not give Dr Lim the letter from Mr Murphy dated 8th April 2015.

 The Complainant had a further appointment with Mr Murphy in November 2015 and did not advise the CMO about that appointment.

 In seeking to return to work the Complainant had meetings with Governor Baker on 12th June 2015, and on 13th July 2015, with Governor Baker and Mr Sean Sullivan. At these meetings he did not advise of the discussion he had with Mr Murphy, provide them with the letter from Mr Murphy of 8th April 2015 or inform them that he had a further appointment on the 2nd November 2015 with Mr Murphy.

 The Complainant received an email on 15th October 2015 from Governor Baker advising that the only option available was to return to work under the terms and conditions of the accommodation policy and setting out what those terms were.

A further meeting took place with Mr Sullivan on the 29th October 2015 who advised him of three options, retire on grounds of ill health, transfer into PASO or return to work for three months under the policy and see how he got on.

 In June 2023, Mr Murphy at the request of the Complainant issued a report which stated that he had cleared the Complainant to return to work in an unrestricted fashion in 2015.

 Dr Lim in a report dated 14th March 2024 noting that she had since seen Mr Murphy’s report of 8th April 2015, stated that in her opinion, her report was congruent with Mr Murphys and her advice remained the same.

Discussion

Ms Kimber SC submitted that the Complainant does not agree with the concept of cognisable period as it has no statutory definition or application and in this case the discrimination continues. The term cognisable period is a term used by the Court to refer to the time limitation period set out in the Act. The Court is satisfied that its jurisdiction is limited by the Act in the first instance, to a breach of the Act within six months of the date of the latest act identified by the Complainant in his WRC referral form.

The Complainants submission referenced “disability or implied disability.” However, other than that reference, no submissions was made in respect of implied disability or how the complaint of failure to provide reasonable accommodation could relate to an implied disability.

 The Respondent put the Complainant on proof of having a disability at the relevant time. The legislation at section 85A (1) states “where in any proceedings facts are established by or on behalf of a Complainant…”. Therefore, in the first instance the Complainant has to establish facts that point to his having a disability.  The Complainant chose not to give evidence and not to call any witnesses in support of his assertion that he had a disability as defined by the Act during the relevant period. The relevant period as determined by section 77 (5) (a) for the purpose of the Act being, 5th September 2015 to 4th March 2016. The definition of disability as defined by the Act is set out above.

Ms Kimber SC submitted on behalf of the Complainant that they were relying on the medical records submitted and the report and evidence of Dr Lim the Respondent’s witness.  The medical reports submitted consisted off Dr Lim’s reports, Mr Murphys reports and the Complainants GP Dr Lawlor’s medical file.

 Dr Lawlor’s file contained a letter dated 2nd February 2024 where he set out a summary of medical notes from 7th December 2011 up to 11th May 2022. In respect of the relevant period 5th September 2015 to 4th March 2016 in the main the references are to social welfare medical certificates and state post back surgery. One entry dated 30th October 2015 states “still mech pain lower back cannot lift children, no long drive see letter”

  Dr Lim’s reports and her evidence were that she accepted that the Complainant had a disability and she felt knowing his history that she should place him out of harm’s way by stating that he should be excluded from control and restraint duties and training. In her evidence Dr Lim also accepted that she had included in her medical report that the Complainant should not do nights, not arising from any medical issue but because the Complainant had told her he did not want to do nights. 

Mr Murphy in his evidence did not accept that his report was congruent with Dr Lims, He was quite clear that he did not believe the Complainant had a disability in 2015, and he had no difficulty with recommending his return to work and carrying out control and restraint duties. His warning re not lifting heavier than 20kg was standard advice after surgery and to allow muscle build back up. Mr Murphy is his evidence stated that he had no difficulty with the Complainant returning to what he described as combatant duties.

 The Court has no medical expertise and relies heavily on medical evidence in cases of this nature. The fact that the medical experts, both witnesses for the Respondent, viewing the issue from the perspective of their own specialities, could not agree that the Complainant had a disability back in 2015, is a factor the Court has to have cognisance of.

The burden of proof at this stage in the case lies with the Complainant to establish facts from which it can be concluded that he had a disability as defined by the Act within the reckonable time periods set out in the Act. 

 The Court has considered the submissions, medical reports, medical evidence from the expert witnesses, the facts that are not in dispute, and noted the disagreement by the medical professionals as to whether or not the Complainant had a disability at the relevant time. The medical witnesses were witnesses called by the Respondent.  The Complainant did not give evidence in respect of his disability nor call a medical expert to give evidence as to his disability. In fact, it was his Surgeons evidence that he did not have a disability

As stated above at this stage in the proceedings the burden of proof lies with the Complainant. Taking all of the above into consideration, the Court finds that applying the balance of probabilities to the information before the Court that the Complainant has failed to establish that he had a disability at the relevant time and therefore his complaint must fail.

 In circumstances where the Court finds that the Complainant has failed to establish that he had a disability at the relevant time.  There is no need for the Court to go further and consider the other issues.

The appeal is upheld. The decision of the Adjudication officer is set aside.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
2 September 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Louise O'Donnell, Court Secretary.