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Protected Disclosures / Whistleblowing: Points to remember and 2020 Case Law

By: Emily Sexton and Amy Cahill | Posted on: 30 Nov 2020

Although enacted over six years ago, 2020 saw the first High Court decisions [1] relating to the Protected Disclosures Act 2014 (the Act), adding to the growing wealth of decisions from the Workplace Relations Commission, Labour Court and Circuit Court on this legislation. The Act (sometimes referred to as the “whistleblower” legislation) provides protection for workers who report possible wrongdoing in the workplace.  This includes protection from dismissal or any other means of penalisation by the Employer.   The Act sets out redress for a worker who considers they have been subject to unlawful dismissal or penalisation for having made a protected disclosure.

Elements to a Protected Disclosure

For a disclosure of information to amount to a “protected disclosure” , a worker must have a “reasonable belief” that there have been one or more “relevant wrongdoings” (as defined in section 5(3) of the Act) which have come to the worker’s attention “in connection” with their employment.

The scope of a possible “relevant wrongdoing” under the legislation is quite extensive and includes matters such as: criminal offences, failure to comply with legal obligations, endangerment of the health and safety of any individual, miscarriage of justice, damage to the environment and improper use of public monies.

It is worth noting that there is a broad definition of worker under the Act which includes employees, consultants, work experience interns and trainees.

Whilst there are specific avenues of disclosure set out in the Act which must be availed of in order to come within the ambit of the Act, there are no specific formalities required to make a protected disclosure.   A worker does not have to label their communication to the employer as a “protected disclosure” or specifically invoke the Act, as recently confirmed by the High Court.[2]  The disclosure does not have made in writing nor is it fatal if the disclosure is not made in accordance with the Employer’s internal Protected Disclosures policy. A worker’s motivation in making the disclosure is irrelevant as to whether the worker qualifies for the Act’s protections, there is no requirement that a disclosure is made in “good faith”.

A 2020 Circuit Court[3] decision made clear that a threat to an employer to make a protected disclosure is not a protected disclosure.  This arose in the context of an employee who, in seeking to negotiate a severance package, threatened to “blow the whistle and ‘make a protected disclosure about purported planning irregularities’ if he did not receive ‘multiples’ of the package on offer.   The Circuit Court described this as an attempt “to use the protected disclosure as a sword of Damocles over his employer to enhance his negotiating stance”.

In practice, employers should examine any complaint raised by an employee through the lens of the Act; if the information disclosed is that which the employee reasonably believes shows a relevant wrongdoing, it may amount to a protected disclosure and should be treated as such.  The Employer should determine whether the matters subject of the disclosure require investigation.

Protected Disclosure or Grievance?

A 2020 appeal on a point of law to the High Court focused on the question of the precise nature of a disclosure,[4] in particular whether an employee’s disclosure/complaint could be considered a grievance, a protected disclosure or perhaps both.   The Labour Court in that matter was of the opinion that there is an “effective spectrum” comprising a grievance on the one end and a protected disclosure on the other, however it recognised that, between those two extremes, it is possible for there to be some overlap between the two.   The High Court seems to have implicitly acknowledged that this is the correct approach.

Whether a disclosure of information amounts to a protected disclosure is ultimately a matter for the determination of the WRC/Labour Court or the Court.  

Subsequent Management of the Employee by the Employer

Employers need to take care in initiating disciplinary proceedings or taking other management decisions subsequent to the making of a protected disclosure by an employee.  Sometimes, an employee who has made a protected disclosure will assert penalisation if the employer initiates disciplinary proceedings against them or makes a management decision which is perceived by the employee to have negative implications for them.   There should be no connection between a disciplinary process and a protected disclosure made by the employee.  Any connection is likely to be considered penalisation of the employee for having made a protected disclosure and would be unlawful. 

On the other hand however, the fact that an employee may have made a protected disclosure does not mean that the employee can assert “immunity” from any disciplinary action or other management decision. 

Redress for a Penalised Worker

A worker may complain to the Workplace Relations Commission that he/she has suffered penalisation or been unfairly dismissed as result of making a protected disclosure.

If it is determined that a worker was subject to dismissal or penalisation as a result of making a protected disclosure, they can be awarded up to 5 years remuneration.  This can be contrasted with a maximum award of 2 years compensation for an unfair dismissal claim.  Unlike a general unfair dismissal claim, if an employee alleges unfair dismissal for having made a protected disclosure, there is no requirement for the employee to have one years’ service.

In addition, the 2014 Act provides for an application for “interim relief” to the Circuit Court by an employee who claims to have been dismissed by their employer wholly or mainly for having made a protected disclosure.  Such an application may result in the re-instatement or re-engagement of the employee, pending the determination of their claim by the WRC.   In July 2020, the High Court decided on the first Appeal in relation to an order of the Circuit Court granting interim relief.[5]   The Plaintiff was a Group Financial Controller for the Defendant and  asserted that he was unfairly dismissed in May 2019 for having made protected disclosures concerning financial irregularities and food safety issues.   The decision of the Circuit Court to grant interim relief, maintaining the employee on pay, was upheld by the High Court and the company was ordered to continue to maintain the employee on pay until the determination of his claim.   The financial implications of this “interim relief” (which is separate from any award which may be may to the employee if his claim is upheld) cannot be underestimated from the Employer’s point of view, particularly due to the current backlog in WRC cases being heard due to Covid -19. 

Summary

If an employee makes a disclosure, an employer should not automatically panic.  It is only if an employer dismisses or otherwise penalises a worker for making a protected disclosure that the full protections and redress under the Act may be enforced against the employer.

It is not the case either that making a protected disclosure under the Act operates as a “get out of jail free” card for employees in relation to any future disciplinary process. Certainly, Employers should ensure there is no connection between an employee having made a protected disclosure and any subsequent disciplinary process.  Where an employee is subject to disciplinary proceedings, especially where a potential protected disclosure has been made, transparency and fair procedures are, as always, paramount.

Employers should consider having a Protected Disclosures policy in place (sometimes called a Whistleblowing Policy or Speak Up policy) that is accessible by employees. Finally, it is not enough to simply have a Protected Disclosures Policy on paper, this policy must be implemented in practice and the Employer should take steps to ensure there is no retaliation or penalisation against a worker for making a disclosure.

If you have any queries in relation to Protected Disclosures in your workplace, please contact Emily Sexton, Partner, CKT.

 

References:
[1] Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56 (13th Feb. 2020), Hosford v. Department of Employment Affairs & Social Protection [2020] IEHC 138 (25th February 2020), Clarke v CGI Food Services Limited And CGI Holdings Limited[2020] IEHC 368 (31st July 2020)
[2] Recently confirmed in Clarke v CGI Food Services Limited And CGI Holdings Limited[2020] IEHC 368 (31st July 2020)
[3] Cullen v Kilternan Cemetery Park Limited [2020] IECC 2,
[4] Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56
[5] Clarke v CGI Food Services Limited And CGI Holdings Limited[2020] IEHC 368 (31st July 2020)
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