Recent Decisions In the Law Relating to Whistleblowers

Since its enactment in 2014, cases under the Protected Disclosures Act 2014 (“PDA” or “the Act”) have been few and far between. However, since June 2016 we have seen two major developments – the granting of the first order for interim relief by the Circuit Court in August 2016, and more recently the first award for penalisation under the Act by the Labour Court.  This decision is dealt with initially below.

The Labour Court: Aidan & Henrietta McGrath Partnership v Anna Monaghan (Labour Court 5 September 2016)

This was an appeal of a decision of the Adjudication Officer, who had dismissed her claim for penalisation on the basis that the issues in question were not related to what is considered to be a “protected disclosure” under the PDA.  To be a protected disclosure, a disclosure must be of “relevant information”, that is, information which the worker reasonably believes tends to show one or more “relevant wrongdoing” and which are connected with his/her employment.

Relevant wrongdoings include:

  • Commission of an offence — which has happened, is happening, or is likely to happen;
  • Failure to comply with any legal obligation (other than one arising under the contract of employment);
  • Miscarriage of justice;
  • Health and safety of any individual;
  • Misuse of public money;
  • Gross mismanagement by public body;
  • Damage to the environment;
  • Destruction or concealment of information relating to any of the above.

In this case, the employee was employed as a Care Assistant in a nursing home for more than four years.  She submitted an alleged protected disclosure to her employer, and to HIQA (the Health Information and Quality Authority). She then alleged that having done so, she was intimidated, bullied, alienated, harassed and victimised. She also alleged that suspending her constituted victimisation within the meaning of the Act.  The employee  had phoned HIQA five times over the course of five weeks, and they carried out an inspection in the Care Home, at which point her employer became aware of the calls. She alleged that she was subjected to  penalisation after that inspection. She was suspended from duty some six weeks later, initially with pay, and then without pay.

The employer claimed that the suspensions in question were unrelated to the alleged protected disclosure.  They also argued that it was not a protected disclosure within the meaning of the PDA, but was in reality a grievance complaint. They claimed that the employee had been suspended because when the complaints that she raised were investigated internally, it was determined that she may have raised them for malicious reasons. It was recommended by the investigator that she be suspended (with pay) to allow for further investigation into that finding.  The second suspension (without pay) was due to the employee’s unreasonable refusal to sign documentation required for compliance purposes.

Section 12(1) of the PDA provides that “an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure”. Therefore the Labour Court determined that firstly, it had to establish whether a protected disclosure has been made, before it could examine whether penalisation within the meaning of the PDA had occurred. It decided that the complaints did come within the meaning of a protected disclosure.

Due to the dearth of cases under the PDA, the Court then looked at its own decisions regarding penalisation under the Safety Health and Welfare at Work Act 2005, in order to consider this point in the current case. In particular, its own decision in O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21, was instructive. The Court re-iterated what is known as the “but for” test in determining whether penalisation has occurred (i.e. “but for” having made the disclosure, the worker would not have suffered the detriment complained of).

The Court noted that the draft report completed by the investigator contained a recommendation to the employer to temporarily suspend the employee pending a further investigation into the allegations of malice made by her co-workers. The Court also noted that it was the employee’s reporting of abuse and wrongdoings which led to the investigation being carried out – as a result of which she was suspended.  This suspension took place on the day the draft report was circulated and before she had an opportunity to makes comments on its findings.

The Court further noted that no investigation into the allegations of malice took place, yet the employee was kept on suspension for a further five months until other reasons to suspend her were given.

The Court decided that had it not been for the protected disclosures made by the employee, she would not have been placed on suspension. While it was the recommendation of the investigator (provided by HIQA), the Labour Court considered that the employer was influenced by the complaints that she made prior to and in the course of the investigation. Furthermore, it preferred the evidence of one of the employee’s colleagues to the effect that the matron in charge in the care home said that the employee  would be coming back to work “over her dead body”, which it held was illustrative of “a mindset” on the part of the Respondent towards the Claimant”.

The Labour Court considered the second period of suspension and held that this was unrelated to the protected disclosure.  Accordingly, for the 4 month suspension period, the employee was awarded €17,500 in compensation.

The Circuit Court “Statutory Injunction”

Section 11(2) and Schedule 1 of the PDA sets out the criteria whereby employees can seek interim relief before the Civil Courts in respect of an unfair dismissal which is by reason of having made a protected disclosure. This application must be brought within 21 days of the dismissal.  If the Circuit Court finds that there are “substantial grounds” for contending that the dismissal is wholly or mainly as a result of the employee having made a protected disclosure, it can request that the employee be re-instated, or re-engaged (i.e. in a different role but on effectively the same terms and conditions of employment otherwise).  If the employer is not willing to do this, or if it is reasonable for the employee to refuse the offer of re-engagement, the Court can order that the employee’s contract of employment be continued.

In the case of Dougan & Clarke v Lifeline Ambulance Services, the Circuit Court in Naas ruled there were substantial grounds for contending that the dismissal of two senior managers at the Lifeline ambulance company was wholly or mainly due to their submission of a disclosure of alleged wrongdoing to the Revenue Commissioners.  The employees were made redundant having made the protected disclosure, which they alleged was unfair and lodged claims with the Workplace Relations Commission.

The employer in this case argued that having been absent from the business for a number of years, he commissioned a business review on his return, and it was stressed that the decision to dismiss the men was taken by the board of Lifeline Ambulances and Mr Hall.

The employer also claimed that three employees had signed the protected disclosure to the Revenue Commissioners, and one had not been dismissed, so that there was no connection between the disclosure and the dismissal. It was also argued that the two employees were planning to set up a rival company, and made the disclosure as a defensive mechanism.

In the only previous case in this area, Philpott v Marymount University Hospital and Hospice Limited, the Circuit Court in Cork concluded that the disclosure made by the employee did not constitute a protected disclosure as the applicant did not hold a reasonable belief that the information disclosed tended to show one or more of the relevant wrongdoings prescribed in the 2014 Act.  This was not disputed in the Lifeline case (i.e. the employer did not try to argue that the disclosure to the Revenue Commissioners – which was not opened in Court – was not a protected disclosure).

The Circuit Court judge confirmed that while he could not find that the employees’ dismissal was wholly or mainly due to the protected disclosure they had made to the Revenue Commissioners on the evidence presented to him, he did consider that they did meet the threshold of establishing that there were substantial grounds for contending (my emphasis) that the dismissals were wholly or mainly due to the protected disclosure.

The employer then offered Mr Dougan re-engagement on “garden leave”, which they described as a “zero hours contract with 40 hours pay”.  The judge ruled that Mr Dougan’s refusal of this offer was reasonable. The employer also offered Mr Clarke re-engagement as a paramedic working on its ambulances. Mr Clarke gave evidence that he had not worked as a full-time paramedic since 2002, and that it would be difficult for him to work alongside staff that he had previously supervised and disciplined. The refusal of this role was deemed by the Circuit Court to be reasonable.

The Court made an order obliging Lifeline Ambulances to pay the salaries of Mr Dougan and Mr Clarke until their unfair dismissal cases are heard at the Workplace Relations Commission. Costs were also awarded against the company.

Why these cases are important to Irish workplaces

These two cases are significant. While the PDA has not produced the plethora of cases that were anticipated, at the very least we now have some valuable experience and an insight into how these cases will be approached in practice.

Any employer will now need to be in a position to establish that any action taken against an employee who has made a protected disclosure is not connected to the disclosure itself. If, in the statutory injunction application, an employee can show that there are substantial grounds to argue that the dismissal is wholly or mainly due to the protected disclosure, an employer could be faced with having to re-instate, re-engage, or else pay an employee pending the hearing of the unfair dismissal case before the WRC, which could be many months hence. To add to that, if the employee is successful in the unfair dismissals claim, he/she can be awarded up to 5 years’ gross remuneration.

Even if the employee is not dismissed, but is treated in such a way as to constitute penalisation of the employee and can show that such treatment would not have occurred, but for having made the disclosure, he/she may successfully ground a claim for penalisation. Penalisation is widely defined in the PDA, and includes suspension, layoff or dismissal, demotion or loss of opportunity for promotion, transfer of duties or change of location of place of work or reduction in wages or change in working hours. It also includes a disciplinary sanction or other penalty or other unfair treatment, coercion, intimidation or harassment. The redress which can be awarded is up to 5 years’ gross remuneration.

The consequences a finding against an employer in respect of either the dismissal, or other penalisation of an employee who has potentially made a protected disclosure are extremely serious and can remain ongoing over a period of time. It is always advisable to seek legal advice before initiating any process against such an employee.

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