Mick Clifford: Lengthy judicial proceedings costing State and its employees 

Public money being spent on legal actions that can persist for years in a system that goes back and forth

Ultimately, irrespective of the legal outcome, a question arises as to whether this is the most cost-efficient way of resolving an industrial relations issue.

For nine years, Robert Cunningham has existed in a suspended form as far as his employment is concerned. 

Cunningham is a prison officer and has not been able to work over that period as a legal employment process wends its way back and forth within the system. 

Before his problems arose, he was considered a good employee. But since 2015, he has been existing on a stipend of around €9,000, down from the approximate €78,000 he would be earning in his job. He is married with a young daughter. 

The total cost of the legal actions associated with his employment is estimated to be somewhere north of €500,000. 

His case highlights how issues of disability are dealt with in some sections of the public sector, but also how public money is spent on legal actions that can persist for years in a system that goes back and forth.

Cunningham began his working life in the hospitality industry and joined the Irish Prison Service (IPS) in 2005. 

It was later stated by the prison service that before suffering injuries on the job, Cunningham’s work record had been “exemplary”. 

Workplace injury 

In 2007, while stationed in Cloverhill Prison in Dublin, he was injured relocating a violent prisoner. He damaged a disc in his back in the incident. 

The injury deteriorated over the following years and surgery was required in 2010. 

On his return to work, he was put on non-contact duties for between four and five months.

Non-contact duties in the prison service refer to jobs that will not involve encountering prisoners. Duties such as manning the prison gate, working in the control room of the prison, the waiting room, or in the censor’s office all come under this heading. 

So also does much of the work in the Operational Support Group (OSG), the unit that intercepts the importation of contraband into prisons and monitors gang activity.

In 2011, he transferred to the Midlands prison where he reverted to general prison officer duties.  Six months later he was injured while moving a prisoner who became violent. This led to a further injury to his back. 

The Chief Medical Officer recommended that he now be put on non-contact duties.

In 2012, the Midlands’ governor John Malone wrote to IPS headquarters saying he couldn’t facilitate another officer on non-contact duties.

“At present, we have one female officer who is on restricted duties because of pregnancy, and we have a further four officers who are on long-term restricted duties following serious illnesses. 

"We do not have any more rotational posts which could be classified as restricted duties.”

The following year, the CMO suggested that the officer’s deployment in restricted duties should be “medium to long term”. 

Cunningham’s back required further surgery over the following two years. 

By 2015, the CMO’s office recommended that “Mr Cunningham should be excluded from all control and restraint duties/training. I understand that Mr Cunningham has a mutual understanding with his governor limiting his control and restraint duties. 

"I would also suggest that Mr Cunningham is excluded from night shift 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 night shifts going forward."

His earnings reduced drastically from €77,800 in 2014 to €9,282 pension rate sick pay the following year. 

He has been on the pension rate since, yet is still only in his early 40s. 

The IPS did offer him one other option which would have been to transfer to an administrative grade within the service.  However, he said this would involve a reduction of salary of around €48,000 annually (the IPS disputed that the drop would be this large).

In 2016, Cunningham made a complaint to the Workplace Relations Commission (WRC) under the Employment Equality Act. 

His case was accepted in March 2016 and heard on dates between September and December of the same year. The result was given on February 2, 2017. The thrust of his case was that he had been discriminated against on the grounds of his disability. 

He claimed that there were ten categories of duties which he could do. He claimed that the IPS “mistakenly alleges that they are exempt from providing ‘reasonable accommodation’ to an employee who had sustained a work-related injury".

For its part, the IPS said that it was not obliged to make accommodation because Cunningham’s injury is long-term and accommodation need only be made in “cases where an officer who is expected to return to full duties does not fully recover in the timeframe”. 

The service said he was offered an administrative role on reduced salary or the option of retiring on grounds of ill health.

The adjudication officer, Gaye Cunningham (no relation) ruled in Rob Cunningham’s favour. 

She concluded that the IPS “failed to consider the provision of reasonable accommodation in relation to his return to work”.  She said he should be allowed to avail of such accommodation and that he be paid €40,000 compensation for the “effects of the discrimination”.

Appeal

The IPS appealed the decision. Appeals from the WRC are heard by the Labour Court. 

That took place the following year. Arguments between the two legal teams went back and forth. 

The thrust of the IPS argument, put forward by their barrister Peter Leonard, was that the prison service is governed by a section of the Employment Equality Act which states that an employee must be fully fit for work. 

The lawyer expressed regret about the work-related injury but stated that “it is an unfortunate fact of life and indicative of the difficult nature of the job that it is relatively commonplace for serving prison officers to sustain an injury in the course of their duties”.

He relied heavily on section 37 (3) of the act which states: “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 Garda Síochána or the service concerned may be preserved.”

In the end, the court accepted the IPS argument. 

The ruling was issued on July 18, 2018. It ruled that the section of the act “provides an exemption to the respondent from a complaint of discrimination in circumstances where the complainant is not capable of carrying out the full range of duties that are required of a prison officer.”

Cunningham could have accepted the ruling and effectively bade farewell to his career, or he could appeal to the High Court. He chose the latter. 

At this point, the Irish Human Rights and Equality Commission (IHREC) got involved. The commission can, in certain circumstances under the act setting it up, give legal assistance to a person who is bringing a matter relating to discrimination.

The High Court heard the arguments back and forth on a point of law. The main point was whether the section of the act at issue should or could be read to include exceptions and interpreted on a case-by-case basis. Judge Tony Barr felt that it should.

“Everything will turn on the facts of a particular case and the size and nature of the emergency service concerned,” he ruled. 

Justice requires that a person suffering from a disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them.”

He referred the case back to the Labour Court with that provision to be included in any ruling.

The IPS was not happy with that outcome. The service appealed to the Court of Appeal. That court ruled on a preliminary aspect of the case on 29 January 2021.

Soon after that, the IPS changed tact and dropped the appeal. This brought the whole wagon back to the Labour Court for a second hearing. 

For the High Court and Court of Appeal hearings, each side had a solicitor and junior and senior counsel, all being paid out of the public purse in one form or another.

Back in the Labour Court, the matter got underway again. The nature of these hearings is that they can be conducted over several months, depending on schedules, with a day or two here and there until the whole thing is done. 

This was where a further issue arose. The case went to hearing last year. The Irish Examiner understands that at least five days of hearing were completed when an issue arose. 

One of the three members of the court, Tom Geraghty, who was deputy chair of the Labour Court, had to step down as his five-year term had come to an end. As a result, the hearing may have to begin again.

The IPS had no comment to make on the case, a spokesperson pointing out that they do no comment on individual cases. 

When contacted, Mr Cunningham said that he had no comment to make for now as the “case is before the court and it would be inappropriate for me to do so and I don’t want to prejudice anything”.

The IHREC doesn’t comment on individual cases either but a spokesperson confirmed that “legal assistance can only be granted where the application meets the criteria” set out in the act establishing the commission. 

Quite obviously that must have applied here. In 2022, the commission spent €285,891.29 on “private client litigation”. 

At the beginning of that year, it had 167 private clients who had been granted legal assistance and whose cases were at various stages of the WRC or court process. The figures for 2023 are not yet available.

The case is unusual but not necessarily atypical of how the legal end of the industrial relations process can go from Billy to Jack and back to Billy in the various forums and courts. 

It may well be that the IPS sees this as a test case, even though, from the public documents available, there appears to be only a handful of individuals for whom such a scenario arises. 

The involvement of the IHREC fulfills its role as an advocate for people with a disability.

Ultimately, irrespective of the legal outcome, a question arises as to whether this is the most cost-efficient way of resolving an industrial relations issue, both for a State employee and for the State.