Penalisation for raising concerns about health and safety in the workplace

Concerned about health and safety in the workplace? Have you been penalised for raising those concerns?

If you are you may make a complaint to the Workplace Relations Commission(WRC) alleging breach of section 27 of the Safety, Health and Welfare at Work Act 2005.

Section 27 provides protection against dismissal and penalisation as follows:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Proving penalisation?

To prove penalisation, you will need to have regard for the case of Paul O’Neill v Toni and Guy Blackrock Ltd (2010) 21 ELR 1.

Firstly, you will have to prove there was a protected act-for example making a complaint about health and safety.

Secondly, the employee must show they have suffered some detriment for having raised the complaint or issue. This might include, for example, being subjected to a disciplinary procedure or being laid off or loss of pay, or some other such detriment.

Thirdly, the employee must show that the detriment suffered was as a result of the protected act, and not some other reason. That is, there must be a causal connection between the detriment and the complaint under the Safety, Health and Welfare at Work act 2005. Sometimes, this is referred to as the “but for” test.

This case from December 2020, between a warehouse operative and a logistics company, is worth reading as the employee concerned was awarded €7,500 in compensation for being penalised about health and safety issues he had raised.