
Irish Prison Service v Robert Cunningham and The Labour Court [2021] IECA 19
The Court of Appeal ("COA") recently considered, as a preliminary point, whether it had jurisdiction to consider an appeal by Irish Prison Service ("IPS") of a decision of the High Court. Mr. Cunningham, a prison officer employed by the IPS, claimed that the COA was not permitted to hear the appeal as the applicable legislation, the Employment Equality Acts and the Workplace Relations Act 2015, did not provide for a further right of appeal from the High Court.
Equality Complaint ⚓︎
During the course of his employment as a prison officer, Mr Cunningham suffered a number of back injuries, resulting in him having to undergo a number of operations. Following surgery in February 2015, the Chief Medical Officer advised the IPS that Mr Cunningham was unlikely to be able to return to full duties, specifically restraint and control duties. In November 2015, Mr Cunningham was informed by the IPS that it would not possible for him to return to duty as a prison officer and he was given the option of seeking to return as a Prison Administrative and Support Officer or otherwise retiring on grounds of ill-health.
Mr Cunningham brought a claim to the WRC under the Employment Equality Acts, asserting that he was discriminated against on the grounds of disability and argued that the IPS was obliged to reasonably accommodate him by giving him duties which did not involve contact with prisoners.
Mr Cunningham succeeded in his claim before the WRC. However, on appeal, the Labour Court held that section 37(3) of theEmployment Equality Acts served as a blanket exemption to the IPS from providing disabled employees with any form of reasonable accommodation related to disability. This was dealt with as a preliminary issue by the Labour Court, without hearing any evidence.
Appeal to the High Court on a Point of Law ⚓︎
Mr Cunningham successfully appealed the Labour Court's decision to the High Court, on a point of law.
The High Court concluded that the Labour Court had erred in its interpretation of section 37(3) of the Employment Equality Acts. Properly construed, the High Court found, that section 37(3) did not relieve the IPS of its obligations to afford reasonable accommodation to employees such as Mr Cunningham, provided that it was not unduly burdensome to do so and provided that the operational capacity of the IPS would not be adversely affected. The Court ordered that the claim be remitted to the Labour Court to allow it to consider whether, on the evidence, the IPS could reasonably accommodate Mr Cunningham, thus allowing him to continue as a prison officer.
Court of Appeal ⚓︎
The IPS Prison further appealed the decision of the High Court to the Court of Appeal ("COA"). Mr Cunningham took issue with the various grounds of appeal submitted by the IPS and also argued that the “applicable legislation” provides that there is no further appeal to the COA, from the High Court. This point was considered as a preliminary issue by the COA.
Mr Cunningham argued that section 46 of the Workplace Relations Act 2015 clearly excludes a further right of appeal from the High Court to the COA. Mr. Cunningham also argued that section 90(1) of the Employment Equality Acts had become “redundant” and/or “rendered obsolete” as a result of subsequent statutory amendments.
Mr Cunningham also claimed that to allow a further appeal from the High Court would be inconsistent with the procedural “streamlining” intended to be achieved by the 2015 Act and would result in further delay and expense such that it would infringe on his right to an effective remedy - protected by the Constitution, the EU Charter of Fundamental Rights and the European Convention on Human Rights.
In response, the IPS relied on Article 34.4.1 of the Constitution which states that:-
"The Court of Appeal shall (i) save as otherwise provided in this Article and (ii) with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law" (emphasis added).
The IPS argued, citing several Supreme Court decisions, that any exception to the right of appeal conferred by Article 34.4.1 must be set out in clear and unambiguous terms. It submitted that the relevant statutory provision in this case was section 90(1) of the Employment Equality Acts which did not exclude a further appeal from the High Court. The IPS argued that section 46 of the 2015 Act had no relevance as to whether or not it was entitled to appeal.
Decision of the Court of Appeal ⚓︎
In respect of Article 34.4.1 of the Constitution, the COA referred to the Supreme Court decisions of Stokes v Christian Brothers High School Clonmel [2015] IESC 13, Law Society of Ireland v Tobin [2016] IECA 26, and more recently North Westmeath Turbine Action Group v An Bord Pleanala [2020] IECA 355. The Supreme Court in Stokes held that any statutory restriction of the right of appeal to the Supreme Court must be “clear and unambiguous”.
Collins J was of the view that the jurisprudence addressing the Supreme Court’s former appellate jurisdiction under (former) Article 34.3.3 also applied to the COA's appellate jurisdiction under Article 34.4.1. He noted that the language of the two Constitutional provisions was materially identical. In each case, the constitutionally entrenched “primary rule” was that an appeal lies “from all decisions of the High Court” (emphasis added). Therefore, for Mr Cunningham to succeed on this preliminary point, he must be able to point to a statutory provision which equates to “a clear and unambiguous ouster of the right of appeal”.
Collins J found that the relevant statutory provision, section 90(1) of the Employment Equality Acts 1998, clearly did not exclude an appeal to the COA. The Court went on to find that section 46 of the 2015 was not the governing statutory provision, and in fact, this suggestion was wholly at odds with the fact that Mr Cunningham’s own appeal to the High Court was brought pursuant to section 90(1) of the Employment Equality Acts.
Consequently, the Court held that the IPS was entitled to prosecute its appeal and placed a stay on any order for costs pending the determination of the substantive appeal.
Conclusion ⚓︎
This case demonstrates how run of the mill employment claims can escalate and be the subject of various appeals.
Employers will be acutely aware of the role that the Irish Constitution plays in terms of affording employees fair procedures and due process as part of any internal workplace processes. However, this case is a reminder of the significant rights and protections afforded by the Constitution as a matter of Irish law more generally.
We now await, with interest, the hearing of the substantive matter before the COA.
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