This case was an appeal, by the respondent, of a decision of the Adjudication Officer. The complainant was a prison officer who had been injured in 2007 while relocating a violent prisoner. He sustained a further injury in 2011 and was out of work for five months. Before returning to work, the respondent's chief medical officer ("CMO") had advised that the complainant be assigned to non-prisoner contact duties on his return to work. Nearly a year later, the CMO advised the respondent that the complainant could not involve himself in control and restraint duties with prisoners and he was therefore assigned to restricted duties which turned into lower risk duties going forward.

At a later date he was assigned his full duties and he queried this, along with making an application for a transfer to units where there is no prisoner contact. He then had further surgery and was advised that the only option was to avail of ill health retirement or to transfer to a different grade. He was informed that if neither of those options were agreeable to him then he could return to work for three months under the Accommodation Policy but if there was no improvement in his condition within three months, and he was not in a position to carry out control and restraint duties, then he would have to go back out on sick leave.

The complainant was not satisfied with the options available to him and submitted his claim under the Acts. The complainant submitted reasonable accommodation had not been provided to him and that the respondent was under a misinterpretation of its obligations as it alleged that it required a work force that are capable of performing all of the duties that they were recruited to undertake.

The respondent submitted that they did not discriminate against the complainant on the grounds of disability and that account must be taken of the physical nature of the duties that a serving prison officer is required to carry out. The respondent alleged that they were entitled to rely on the special derogation provided under section 37 of the Acts. The respondent claimed that they had offered reasonable accommodation and alternative employment to the complainant and that the injury suffered by the complainant was indicative of the difficult nature of the job. The respondent also stated that they did not have capacity to accommodate staff for longer than three months as there are very limited posts available and those posts are required for pregnant staff.

The Court noted that what was at issue was a question of whether section 37(3) of the Act is to be read in conjunction with, and conditional upon, section 16(3) of the Act. The Court held that they must seek to ascertain the true intention of the Act by reading it as a whole and construed in light of the wording and purpose of the European law it was giving effect to. The Court found that section 37(3) of the Act should be interpreted as a stand-alone provision which is not qualified or conditional on section 16(3). Therefore, the Court found that section 37(3) provided an exemption to the respondent from a complaint of discrimination in circumstances where the complainant could not carry out their full range of duties required.  Accordingly, the adjudication officer's decision was overturned.
http://www.workplacerelations.ie/en/Cases/2018/July/EDA1837.html