An award of €40,000 made to a prison officer almost a decade ago after a finding by an adjudication officer that his employer had failed to make the appropriate accommodations for him at a time when he was suffering from a disability has been overturned by the Labour Court.
The long-running case – which had previously been the subject of a High Court action, only to be referred back to the Labour Court – involved prison officer Robert Cunningham, who had worked in the role since 2005, first at Cloverhill and then Portlaoise.
Mr Cunningham had undergone back surgery in February 2015 and was subsequently found by occupational medicine specialist Dr Sharon Lim to be unfit to resume full duties.
In a May 2015 memo, Dr Lim recommended a period of restricted duties to facilitate Mr Cunningham’s ongoing rehabilitation.
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“Going forward,” she wrote, “our opinion is that Mr Cunningham should be excluded from all control and restraint duties/training.”
It subsequently emerged that when Mr Cunningham attended an appointment with Dr Lim in April of that year he brought with him various background materials in relation to his condition but did not hand over a letter issued to him three weeks previously by his surgeon, Martin Murphy, suggesting he could return to full duties but cautioning that he should initially avoid lifting weights of more than 20kg.
Mr Cunningham, who was represented by the Irish Human Rights and Equality Commission, was found by the court to have sought to rely on the existing medical evidence in his claim, under the Employment Equality Acts 1998-2015, that he had a disability and that no reasonable accommodation had been provided to him by his employer.
He had, in fact, been told by his superiors in the Irish Prison Service he could not return to normal duties if he was unfit to carry them out completely, and his options after three months of restricted duties were to take ill-health retirement or move to an administrative role that would have involved a significant drop in income.
Giving evidence at a hearing earlier this year, however, Mr Murphy said he believed Mr Cunningham was fit to return to full duties, including those involving the control and restraint of prisoners, and he had been of that opinion when he wrote the letter issued to the complainant in April 2015.
“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,” he said. “My advice today remains the same as in 2015.”
He said he had performed similar surgery on a number of people who worked in areas that required physical exertion such as athletes, firefighters and other prison officers, all of whom had returned to work without restriction.
Asked whether he was familiar with the demands involved in applying control and restraint techniques, he said he was, that he was a black belt in judo.
Dr Lim confirmed she did not receive Mr Murphy’s letter, but said her opinion regarding Mr Cunningham’s inability to resume full duties would not have been different if she had been aware of its contents.
In her decision, the court’s deputy chair, Louise O’Donnell, said the burden of proof was on Mr Cunningham to establish he had a disability during the relevant period, and he had not provided any medical evidence of this.
Although the two medical experts to provide testimony, both called by the respondents, disagreed, the court found “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”.
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