€40,000 reward for prison officer almost a decade ago revoked due to lack of disability documents – The Irish Times

A €40,000 award given to a prison officer almost a decade ago after the adjudicating officer found that his employer had failed to provide him with reasonable accommodation while he was disabled has been quashed by the Court Labor Court.

The long-running case – which was previously heard in the High Court before being referred back to the Employment Tribunal – involved prison officer Robert Cunningham, who had been in the role since 2005, first in Cloverhill and then in Portlaoise.

Mr Cunningham underwent spinal surgery in February 2015, after which occupational health specialist Dr Sharon Lim determined he was unable to resume full duties.

In a May 2015 memo, Dr Lim recommended a period of restricted duties to facilitate Mr Cunningham’s ongoing rehabilitation.

“Going forward,” she wrote, “our opinion is that Mr. Cunningham should be excluded from all control and containment duties/training.”

It subsequently emerged that when Mr Cunningham attended Dr Lim’s appointment in April this year, he brought with him various additional materials relating to his condition, but failed to hand over a letter issued to him three weeks earlier by his surgeon, Martin Murphy, suggesting that he could return to full duties, but warning that he should initially avoid lifting more than 20 kg.

The court found that Mr Cunningham, represented by the Irish Human Rights and Equality Commission, relied on existing medical evidence in his claim, under the Employment Equality Acts 1998-2015, that he was disabled and that his employer had failed to provide him with any reasonable accommodation .

In fact, his superiors told him this in prison Irish Prison Service he could not return to normal duties if he was unable to perform them completely, and after three months of reduced duties he had the choice of either retiring due to poor health or moving to an administrative position, which would involve a significant reduction in income.

However, when giving evidence at a hearing earlier this year, Mr Murphy stated that he believed Mr Cunningham was capable of returning to full duties, including monitoring and restraining prisoners, and he shared this view when writing to the Complainant in April 2015.

“As part of the subsequent advice I gave him in 2015, I agreed to an indefinite return to work as a correctional officer, but gave him some common sense advice,” he said. “My advice today remains the same as it was in 2015.”

He said he performed similar surgery on a number of people who worked in physically demanding areas, such as athletes, firefighters and other correctional officers, all of whom returned to work without restrictions.

When asked if he knew the requirements for using control and immobilization techniques, he replied yes, because he had a black belt in judo.

Dr Lim confirmed she had not received Murphy’s letter, but said her opinion of Mr Cunningham’s inability to return to full duties would not have been different had she known its contents.

In her order, deputy president Louise O’Donnell said the burden of proof was on Mr Cunningham to show that he was disabled during the period in question, although he had not provided any medical evidence to support this.

Although the two medical experts who gave evidence, both called by the defendants, disagreed, the court concluded that “on the balance of probabilities of the information presented to the court that the applicant had not established that he was disabled at the relevant time” and therefore his complaint must be rejected.”