Sinéad Gibney

The Irish Human Rights and Equality Commission provided legal representation to Robert Cunningham in taking the case against his employer as it raised “a significant issue regarding the interpretation of Ireland’s employment equality law”.

After suffering workplace-related injuries in the course of two separate assaults by prisoners, Mr Cunningham was subject to a medical assessment and told he could not retain his job as a prison officer, as he might be unable to perform restraint and control duties.

He was told that he could resign and apply for a lower-paid position or seek ill-health retirement.

Mr Cunningham claimed discrimination on the ground of disability under the Employment Equality Act (EEA), complaining that the IPS had failed to make any reasonable accommodation for him as required by the Act.

He succeeded at the Workplace Relations Commission, but lost at the Labour Court on appeal by the IPS. Mr Cunningham appealed the Labour Court decision to the High Court on a point of law.

In a significant judgment handed down last June, Mr Justice Anthony Barr overturned the Labour Court preliminary finding that the prison service had a blanket exemption from the complaint of discrimination by virtue of section 37.3 of the EEA.

Mr Justice Barr found that section 37.3 did not “absolve” the IPS of its obligations to provide reasonable accommodation for disabled people if they could be provided reasonably while preserving the service’s operational capacity.

The IPS appealed the decision of the High Court to the Court of Appeal. This week, however, counsel for the IPS informed the court that the IPS would withdraw its appeal, leaving the High Court decision stand.

Mr Cunningham’s case will now return to the Labour Court, where his complaint of alleged discrimination will be fully heard. The court awarded costs to the Irish Human Rights and Equality Commission.

Chief commissioner Sinéad Gibney said: “Having been seriously injured in the course of his duties as a prison guard Mr. Cunningham was told that he could not continue to work as a prison guard as a result of his disability. The IPS then claimed an exemption from the obligation to provide him with reasonable accommodation by virtue of its operational requirements.

“The Commission welcomes the IPS’ decision to withdraw its appeal of Mr Justice Barr’s High Court decision. Mr. Cunningham’s complaint of discrimination on the ground of disability is now pending before the Labour Court, and the Commission will endeavour to offer him every assistance in that regard.

“This is an important case that illustrates the importance of access to work to the dignity of persons with disabilities.”