There is an old legal maxim that "hard cases make bad law". Without debating the validity or otherwise of that maxim, it is hard to avoid considering it when reviewing the Labour Court's recent decision in the case of Onyemekeihia v Minister for Justice and Equality, EDA2217. Here our Adrian Twomey reviews the Court's decision in a case that centred on the issue of racial abuse and harassment in the Irish prison system.
The Complainant, Mr. Onyemekeihia, was a prison officer employed by the Irish Prison Service (IPS). The Labour Court reported that he is of African ethnicity and black. He was subjected to continuing racial abuse by prisoners in the course of his employment. He repeatedly complained about the treatment to which he was being subjected. A Consultant Psychiatrist gave evidence that the Complainant displayed symptoms of Post-Traumatic Stress Disorder (PTSD).
It appears that the IPS did take disciplinary action against a number of prisoners as a result of the incidents of racial abuse and harassment. In particular, certain prisoners had "privileges" revoked for up to 40 days as a result of such incidents. However, the actions taken by the IPS do not appear to have had any significant impact in terms of reducing or eliminating the racial abuse about which Mr. Onyemekeihia complained. Instead, he and his trade union argued that the IPS should have taken more severe action against prisoners who engaged in racial abuse and harassment of prison officers by reducing the period of remission of their prison sentences.
It was accepted by both parties at the Labour Court that the racial abuse and harassment had occurred. The IPS, however, sought to rely on section 14A of the Employment Equality Act 1998 (as amended). That section gives employers a defence to claims regarding harassment where they take such steps as are reasonably practicable to (a) prevent the harassment from occurring and (b) to reverse the effects of any harassment that has occurred. The IPS argued that the prison environment is different to other workplaces and there is very little scope to modify their behaviour.
The choice faced by the Labour Court was undoubtedly a hard one to make. It could, on the one hand, decide that the IPS had taken such steps as were "reasonably practicable" by revoking prisoners' privileges and allow the employer to rely on the section 14A defence. It would, however, then effectively be telling the Complainant that he would inevitably have to endure racial abuse in the course of his day-to-day working life. Alternatively, the Court could impose liability on the IPS and come close to compelling it to reduce prison sentence remissions where prisoners racially abuse prison officers.
In opting for the first of these choices, the Court found against the Complainant and stated:
"The Court accepts the thrust of the argument advanced on behalf of the Respondent in relation to the unique nature of the prison environment. In the Court’s judgment, section 14A cannot be interpreted as imposing a one-size-fits-all approach when it comes to an employer’s obligation to take reasonably practicable steps to prevent harassment and sexual harassment in the workplace.
The Court is satisfied based, on the evidence before it, that the Respondent has consistently taken a robust approach in dealing with allegations of racist behaviour by prisoners against officers – including the Complainant - and that the sanctions imposed ... are meaningful and proportionate. In that regard, the Court’s judgment, is that the Respondent has an active anti-harassment policy in place which is known to, and understood by, prisoners and officers and can, therefore, rely on the defence of section 14A. The Complainant’s appeal, therefore, fails."
The Onyemekeihia case was undoubtedly a "hard case" for the Labour Court to decide. Has it resulted in "bad law"? That is ultimately a matter of personal opinion. However, it seems clear that the Court has now accepted that section 14A must be interpreted in the context of the unique characteristics of a given workplace. As a result, it seems that the Court has accepted that harassment is effectively inevitable in certain workplaces and that the relevant employers can still escape liability. It might be argued that this marks a departure from previous decisions and that it potentially marks a turning point in Irish employment law.
The outcome highlights the importance of both employers and employees seeking and obtaining appropriate legal advice regarding claims before the WRC and the Labour Court. Those requiring such guidance or representation can contact our Adrian Twomey.