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IPS withdraws appeal in disability case
Sinead Gibney of IHREC Pic: RollingNews.ie

26 Oct 2021 / employment Print

IPS withdraws appeal in disability case

The Irish Human Rights and Equality Commission (IHREC) has welcomed the withdrawal by the Irish Prison Service (IPS) of an appeal against a High Court judgment that the human-rights body described as “significant”.

In the case Cunningham v Irish Prison Service, the court had found that the IPS must reasonably accommodate prison officers with disabilities.

The commission, which provided legal representation to Robert Cunningham, said that he had raised a significant issue on the interpretation of Ireland’s employment-equality law.

Injuries after assaults

Mr Cunningham suffered workplace-related injuries during two separate assaults by prisoners.

Arising out of these incidents he developed back problems, and underwent a series of operations.

Following a medical assessment by the IPS, he was told that he could not retain his job as a prison officer, as he might be unable to perform restraint and control duties, but 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, 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 (WRC), 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 June 2020, Mr Justice Anthony Barr overturned the preliminary Labour Court finding that the IPS had a blanket exemption from the complaint of discrimination, by virtue of section 37.3 of the Employment Equality Act.

The judge found that the section 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.

Back to Labour Court

The IPS appealed this decision to the Court of Appeal, but counsel for the service told the court this week that it would withdraw its appeal.

IHREC said that Mr Cunningham’s case would now return to the Labour Court, where his complaint of alleged discrimination would be fully heard. The court awarded costs to the commission.

Sinéad Gibney (IHREC chief commissioner, pictured) said that the body would try to offer him “every assistance” in the Labour Court hearing.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland