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Protected Disclosures

Are your protected disclosures merely grievances?

The High Court has recently dealt with two cases concerning the Protected Disclosures Act 2014. This is the legislation that was enacted in Ireland to give protection to so called whistle-blowers.

It is relatively new legislation and the boundaries of the act have not been fully explored or clarified yet. For this reason, it is useful to see the High Court passing judgment in cases which touch upon the Act.

Baranya v Rosaderra Irish meats Group Limited [2020] IEHC 56

Mr Baranya was dismissed in September 2015 and brought a case for unfair dismissal. 

He claimed that the work he was obliged to do caused him pain and suffering and he had brought his complaints to HR, the Health and Safety manager in his company, and his supervisor.

He claimed these complaints were protected disclosures as he was being put in danger of injury as a consequence of breaches of the Health and Safety legislation and regulations concerning the provision of a safe workplace.

When the case came before the Labour Court the employee argued that his complaints were protected disclosures but the company said they were merely grievances as there was no ‘relevant wrongdoing’ as understood and required by the Protected Disclosures Act 2014.

The Labour Court agreed with the employer and Baranya’s case failed. He appealed this decision to the High Court on a point of law.

High Court

The High Court agreed with the Labour Court and found that what he complained of were not protected disclosures but grievances.

Interestingly, Justice O’Regan held that if the Labour Court had said Baranya’s communications were grievances rather than protected disclosures it would have amounted to the Labour Court deciding that a grievance can never be a protected disclosure and this would have been an error in law.

What the Labour Court said was it was a grievance and not a protected disclosure and this distinction was acceptable.

Hosford v Department of Employment Affairs and Social Protection [2020] IEHC 138

Mr Hosford worked in the Department of Employment Affairs and Social Protection. He was subject to a disciplinary procedure for alleged misconduct.

He brought a claim to the WRC on the basis that he was effectively being penalised for having made a protected disclosure. The WRC found against him and the Labour Court agreed with this decision when he appealed it.

He then appealed to the High Court on a point of law.

Mr Justice Meenan determined that the disciplinary process in the workplace was not concerned with the emails containing purported protected disclosures per se. What it was concerned with was the widespread circulation of said emails and this was what led to the disciplinary procedure against Mr Hosford.

Thus, the High Court agreed with the WRC and the Labour Court’s decision that Mr Hosford was not penalised for having made protected disclosures.

I have written previously about this case: you can read the blog post here.

Comment

I meet employees frequently who tell me that they have made protected disclosures to their employers and are seeking some relief or remedy afforded by the Protected Disclosures Act 2014. 

It is rare, however, that what the employee is referring to is a real protected disclosure as defined in the Protected Disclosures Act 2014. It is more likely to be a grievance or some sort of complaint as opposed to a “relevant wrongdoing” which is the test in set out in the Act.

Section 5 of the Protected Disclosures Act 2014 defines a protected disclosure, disclosure of relevant information and what is “relevant information”.