by Breda O'Malley January-08-2018 in Employment Law
The Protected Disclosures Act 2014 (“the Act”) was introduced to protect employees who make a protected disclosure (also known as “whistleblowing”) during the course of their work.
A protected disclosure is a disclosure made by an employee in relation to a ‘relevant wrongdoing’, which came to the attention of the employee in connection with their employment.
A list of ‘relevant wrongdoings’ is set out in the Act, and includes for example, a failure to comply with a legal obligation or damage to the environment.
An employee who is penalised or dismissed by their employer for making a protected disclosure can bring a claim against their employer to the Workplace Relations Commission (“WRC”). Unlike a claim for unfair dismissal (where an employee must have at least 1 years’ service before he/she may bring a claim), there is no minimum service requirement. If the employee is successful, they can be awarded up to 5 years’ remuneration. This is a significantly in excess of the maximum compensation, which may be awarded in a regular unfair dismissal claim, which is 2 years’ remuneration.
“Penalisation” under the Act is defined very broadly and can include a disciplinary sanction, suspension, a change in working hours or a demotion.
The case law in this area has been slow to emerge and to date, there are only 10 published WRC / Labour Court determinations.
In the majority of these cases, the merits of the employee’s claims were not considered by the WRC as the employees did not lodge their claims within the time limits set out in the Act.
Despite the limited case law, some interesting and informative decisions have emerged in relation to this evolving area of law. We have set out below some of the key learning, which may be discerned from the case law to date;
“But For” Test
In order to succeed in a claim for penalisation, an employee must be able to show that “but for” the protected disclosure, he/she would not have been penalised.
In September 2016, the Labour Court awarded €17,500 to the employee, in Monaghan v Aras Chois Fharriage, which was the first award for penalisation under the Act.
The case related to a nursing home worker who complained about health and safety issues at work. The employer mistakenly believed that the complaints were grievances (as distinct from treating the complaints as protected disclosures) and suspended the employee on full pay in accordance with its grievance procedure. The employee brought a claim alleging that she had been penalised for making the disclosure.
The Labour Court found in favour of the employee and held that her complaints were protected disclosures. The Court was satisfied that the employee had satisfied the “but for” test as but for her protected disclosures, she would not have been suspended by her employer.
In relation, to the employee’s suspension in this case, it was very clear that the employee would not have been suspended, if she had not made the protected disclosure. However, it is not this clear cut in all cases.
For example, in a Senior Official v A Local Authority (ADJ-00001721), a Local Authority employee who was a “senior and long standing official” made a protected disclosure whereby he alleged his employer, the County Council had disguised payments and made accounting irregularities. An investigation by the employer into the disclosure concluded there was nothing to investigate.
A year later, the employee was transferred to another department. He alleged that this was a demotion and as such, constituted “penalisation”. He consequently brought a claim against his employer to the WRC.
The WRC held that there was insufficient evidence to conclude that the employee’s transfer was as a result of his protected disclosure. The employee did not convince the WRC that the transfer would not have occurred “but for” his disclosure. The WRC was of the view that the employer is entitled to re-organise and re-assign within its organisation.
The case-law to date highlights that despite the protections provided by the Act, employees still have to overcome a significant hurdle in proving that the alleged “penalisation” would not have occurred “but for” the disclosure they made.
Just doing your job
The Act provides that a disclosure is not covered by the Act, if it is part of the employee’s job to detect or investigate the “relevant wrongdoing”, which he/she asserts forms the basis of his/her protected disclosure.
In A Public Servant v A Government Department (AdJ-00004925), the employee, as part of his job, provided training at an off-site location and observed a business, who he was overseeing, failing to comply with their legal obligations. He communicated this to his line manager.
Two months later, he was suspended for unrelated allegations, which an independent investigator concluded were well founded. The employee alleged that this suspension amounted to penalisation resulting from his protected disclosure.
The WRC held that his disclosure was not covered by the Act, as it was part of his job, to detect such matters. Furthermore, it did not constitute a wrongdoing by his own employer.
Similarly, in Donegal County Council v Liam Carr (PDD161), a Fire Station Officer alleged that he had made 6 separate protected disclosures. Four of the complaints related to the alleged behaviour of fire-fighters in the station. One related to a work payments claim and the other related to the physical fitness of two fire-fighters in relation to their ability to carry out their jobs.
The employee alleged that as a result of these protected disclosures, he suffered penalisation in the form of being undermined in his position as Station Manager.
The Labour Court held that the allegations could not constitute protected disclosures, as it was part of his role as a Station Officer to detect and report such matters.
Importance of whistleblowing policy
Another decision of the WRC has highlighted the importance of having a whistleblowing policy in place, which prescribes how a disclosure should be made by an employee and how it will be dealt with upon receipt by the employer. Having a policy in place may bolster an employer’s defence, if a claim is subsequently brought against it by the employee.
In an Employee v Employee (ADJ-00003371), the WRC criticised the employee for not using the comprehensive whistleblowing policy, which had been put in place by the employer. The WRC held that the employee had not made a protected disclosure until the letter of complaint from her solicitor was received, as her previous method of disclosure was not in line with the employer’s policy.
Key Considerations
A number of helpful lessons may be discerned from the case law regarding whistleblowing to date. Although we await further decisions to fully assess the emerging trends in this area, a number of key considerations for both employees and employers are as follows;
- An employee must bring his/her claim within 6 months from the date of the alleged penalisation/dismissal (which can be extended to 12 months, if the WRC adjudicator is satisfied the failure to present the complaint within the six month period was due to reasonable cause)
- A disclosure is not covered by the Act, if it is the function of the employee (or the employee’s employer) to detect, investigate or prosecute the subject matter of the disclosure.
- A disclosure is not covered by the Act, if it does not involve an act or omission of the employer.
- The employee must be able to prove that “but for” the protected disclosure, he/she would not have been penalised.
- Employers should strongly consider having a whistleblowing policy in place.
For further information please contact Breda O'Malley bomalley@hayes-solicitors.ie at Hayes solicitors.
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About the Author
Breda O'Malley
Breda is a partner in the Employment Law Team at Hayes solicitors.
Breda advises on the full range employment issues across a broad range of sectors, for established business clients and senior executives.