Danger at every turn

Darren Martin examines a recent decision which will have implications for An Garda Síochána Members injured on duty and whom are left with life changing injuries

The Employment Equality Act 1998, Section 37(3) provides, ‘It is an occupational requirement for employment in An Garda Síochána, Prison Service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the service concerned may be preserved’.

In Cunningham v Irish Prison Service and the Labour Court [2020 IEHC 282], it was submitted that Section 37(3) did have regard to the fact that these services were emergency services and in such circumstances it was reasonable a requirement that those that were employed in such emergency services should have the capacity to have the full range of functions that they may be called upon to perform in the course of their work.

The High court determined that they must interpret Section 37(3) in light of Article 27 of the UN Convention on the Rights of Persons with Disabilities, to which both EU and Ireland are signatories.

This case concerned a prison officer who was injured on two occasions after being assaulted by prisoners which left him with serious long-term back injuries. In 2015, the CMO for the Civil Service certified he would no longer be fit to carry out restraint and control duties in the medium or long term. He was told that his options were to resign as a prison officer and apply for an administrative job, which would result in a substantial drop in pay and require an additional 10 years of employment before qualifying for a pension. Alternatively, he could apply for retirement on ill health grounds.

His claimed he was discriminated against on the grounds of disability, prohibited under the Employment Equality Act 1998. The Irish Prison Service argued that they were not obliged to provide reasonable accommodation due to an exemption as provided in Section 37 (3) of the 1998 Act in that he was not able to perform the full range of duties which included, inter alia, the restraint and control of prisoners. He was willing to fill another role in the IPS which did not involve dealing directly with prisoners. This was declined by the IPS.

In this case the court held that the reasonable accommodation would include the division of tasks, including one not involved in the control and restraint of prisoners. The IPS submitted that it was fundamental to the role of the Prison Officers job that they could restrain and control prisoners due to their [the prisoners] often dysfunctional backgrounds, drug use or mental health issues, being volatile and prone to violence. It was also submitted the reasonable accommodation was provided in that the offer to resign or retire on ill health ground was, the IPS submitted, reasonable accommodation.

The Court said, the Oireachtas recognised the particular function of An Garda Síochána, the prison service and other emergency services. However, the correct interpretation of Section 37(3) does not mean that the IPS can self-certify that the applicant is incapable of performing the range of functions that he may be called upon to do as a prison officer. To allow such self-certification by the IPS would deprive the applicant of an effective remedy in seeking to enforce his rights under the Directive and the Employment Equality Act.
Each emergency service should be distinguished from one another. For example, “In An Garda Síochána, most Gardaí would have to be able to chase and apprehend suspected criminals, to intervene in situations of violence and carry out searches of buildings and other locations. A person in a wheelchair would not be able to perform these functions. However, if the Garda was employed in the Forensic Documents Section, or in the Cyber Crime Section, he or she could probably be relatively easily accommodated if they had an accident and had to use a wheelchair, because their work is completely desk bound. In these circumstances, they could be accommodated in their use of the wheelchair without compromising the operational capacity of An Garda Síochána,” said Barr J.

He said it was clear that the employer does not have to create a job for the person with a disability, nor do they have to provide measures that are unduly burdensome.

In accepting that a larger Emergency Services involves “different duties involving different levels of physical capacity, will be performed by different operatives at the same level, e.g. some Gardaí will perform active duties in the community, whereas others will perform specialised investigations from an office. It is necessary to look at the range of duties a particular person may have to perform in his or her role within the emergency service concerned,” said Barr J.

When it comes to emergency services, Section 37(3) does not absolve the employer of the duty of providing reasonable accommodation for a disabled person that can be reasonably done and while at the same time preserving the operational capacity of the service.
The High Court remitted the case back to the Labour Court.

Darren Martin (BL, LLM, MSc, BCL, BA,) is a serving member of An Garda Síochána

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