Categories
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”.

Categories
Protected Disclosures Unfair Dismissal

Employer ordered to continue pay and benefits to dismissed employee

whiltleblower-legislation

John Clarke was dismissed from his job in May 2019 but his employer was ordered by the Circuit Court to maintain his pay and benefits until the outcome of his WRC case. (That case has still not been determined as I write this in September 2020).

Mr Clarke had sought the protection of the Protected Disclosures Act 2014 from the Circuit Court as he claimed he had been dismissed for having made protected disclosures in the workplace.

He had commenced employment as a group financial controller with CGI Food Services Limited in 2017. Difficulties arose for him when he raised issues which he claims were protected disclosures and ultimately led to his dismissal. The issues were to do with financial details, payments, a false invoice, unvouched expenses, Revenue issues, to name a few.

He fell out of favour with the employer and was berated and criticised and ultimately dismissed for allegedly poor performance. His contention was that this was simply a cover for terminating him for having made protected disclosures and he was entitled to the protection against penalisation contained in the Protected Disclosures act 2014.

He went to the Circuit Court and was successful in arguing that he was dismissed for having made protected disclosure and he was entitled to an interim relief order which maintained his pay and benefits until the WRC hearing had been determined. He succeeded in obtaining such an order.

The WRC hearing commenced in September 2019 and was adjourned a number of times, including on account of the Covid 19 emergency. The Employer ultimately appealed the Circuit Court decision to the High Court.

Protected disclosures?

The first thing the High Court had to decide was whether the matters Clarke complained about were protected disclosures or merely grievances. The issues he had raised concerned financial irregularities and food safety concerning the storage of food (pizza). The financial issues he raised were concerns about vat and Revenue obligations.

The employer claimed these issues were not protected disclosures and were not “relevant wrongdoing” as set out in the Protected Disclosures Act 2014. The employer also contended that the employee had only raised the protected disclosures argument after his dismissal.

The High Court held that the issues were, in fact, protected disclosures and there was no need for the employee to use the language of “protected disclosure” or to invoke the Protected Disclosures act 2014 in the workplace in the first instance.

The Court also held that without making any final finding on the substantive case of the employee that “it is likely that there are substantial grounds for contending that the dismissal results wholly or mainly from the employee having made a protected disclosure”.

Mr Justice Richard Humphreys dismissed the employer’s appeal and affirmed the order of the Circuit Court and the employer is obliged to continue the employee’s contract of employment for the purpose of pay and benefits until the case is decided by the WRC.

Clearly, the Covid 19 pandemic may prolong even further the ultimate determination of this case which will prove to be a costly affair for the employer the longer it goes on as he will be obliged to continue Mr Clarke’s pay and benefits.

Read the full decision in John Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368

Categories
Protected Disclosures

Protected Disclosures Do Not Make Employees Untouchable

whiltleblower-legislation

Employees need to be clear that any claim that they wish to advance under the Protected Disclosures Act 2014 will fail unless they can show that the penalisation or dismissal about which they complain occurred as a direct consequence of having made a protected disclosure.

The employee is not protected by this Protected Disclosures Act 2014 simply because he claims to have made a protected disclosure.

Because it may well be the case that an employee is disciplined or dismissed for reasons wholly unconnected to any alleged protected disclosure-for example, conduct, competence, performance, redundancy.

Both the Labour Court and Workplace Relations Commission confirmed this was the case in a case involving a civil servant in Department of Employment Affairs and Social Protection v Hosford.

Hosford claimed that he had been penalised by the Department for having made a protected disclosure in the workplace. The Department denied this was the case and said he had been disciplined for alleged disruptive behaviour, failing to follow reasonable directions, and failing to follow the practices and procedures in the workplace.

Hosford’s claim at the WRC failed and he appealed this decision to the Labour Court. The Labour Court held that making a protected disclosure “does not immunise” and employee from the normal disciplinary procedure in the workplace.

The Labour Court found

The fact of a person having made a protected disclosure within the meaning of the Act of 2014 does not immunise the Appellant from a disciplinary response to behaviours which would ordinarily cause an employer to consider the initiation of such procedures provided such behaviours are not in themselves protected disclosures or arising in the course of making protected disclosures. In this case the Court finds that the behaviours which grounded the initiation of disciplinary procedures were not protected disclosures or arising from the making of such disclosures.

Read the full decision here.

Conclusion

Making a protected disclosure is sometimes used by an employee in reliance on the significant protections afforded to employees by the Protected Disclosures Act 2014. But the employee cannot use it as a sword or a shield if there is some other reason(s) as to why the employee is facing an investigation or a disciplinary procedure.

You need to be clear, too, about the significant difference between what constitutes a protected disclosure-relevant wrongdoing-and a grievance about shoddy, but not unlawful, work practices.

Categories
Protected Disclosures

The Crucial ‘But For’ Test in Penalisation for Making a Protected Disclosure Cases

When you claim that you have been penalised for having made a protected disclosure under the Protected Disclosures Act 2014 you need to be aware of a test you will need to pass if you are to succeed with your case.

Firstly, section 5 Protected Disclosures act 2014 sets out what is a protected disclosure for the purposes of the act.

Section 3 Protected Disclosures Act 2014 defines penalisation for the purposes of the act as follows:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) 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) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Section 12 Protected Disclosures Act 2014 provides the protection against penalisation for having made a protected disclosure as follows:

12. (1) 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.

The key thing to take from this to win your case is that you must prove you suffered the penalisation for having made the protected disclosure. ‘For’ is the key word as the Labour Court has held that if there are other reasons why you may have been penalised your claim under the protected disclosure act will fail.

The “but for” test

The Labour Court, in PDD 162 AIDAN & HENRIETTA MC GRATH PARTNERSHIP and ANNA MONAGHAN stated as follows:

The Court must now consider whether or not she was penalised for having made such a protected disclosure.

The Act is a new piece of legislation with limited case law, however, the provisions regarding penalisation are broadly similar to those provided in the Safety Health and Welfare Act, 2005. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited[2010] E.L.R. 21, it is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

The Court is of the view that the Toni and Guy case involved penalisation under the 2005 Act, nevertheless, the general principle enunciated in that case remains valid in the case under consideration.

You will note that the Labour Court requires you to prove that the penalisation complained of would not have occurred but for the protected disclosure and if there was other possible causes of the penalisation a look at the motives which influenced the decision maker to penalise will have to be looked at.

This is known as the “but for” test.

Conclusion

It is not enough to show you have made a protected disclosure and have been penalised; you must prove you have been penalised for making the protected disclosure.

If there is other possible explanations for the penalisation the motives of the employer will have to be examined but you will have to show that ‘but for’ the protected disclosure you would not have been penalised.

Categories
Unfair Dismissal

Exceptions to the 12 Months’ Service Requirement in Unfair Dismissal Claims

fair-dismissal-procedures

If you are unfairly dismissed and wish to bring a claim under the Unfair Dismissals Act 1977 you will need to have been employed continuously for 12 months.

If you do not have 12 months’ service you cannot bring a claim for unfair dismissal or constructive dismissal if you cannot clear this hurdle.

That is the bad news; the good news is there are some important exceptions to this 12 months’ service requirement. Let’s take a look at them, shall we?

Exceptions to 12 Months’ Service Requirement

  1. Protected disclosure-if you are dismissed for having made a protected disclosure under the Protected Disclosures act 2014 you do not need 12 months’ service
  2. Discrimination-if you were dismissed on a discriminatory ground you will be able to bring a claim under the Employment Equality Acts without 12 months’ service
  3. Trade union-an employee who is dismissed for trade union membership or activity does not require 12 months’ service
  4. Pregnancy, birth, breastfeeding-any dismissal connected with these issues can be brought without 12 months’ service
  5. Maternity protection-any dismissal arising from the exercise of a maternity right does not need 12 months’ service
  6. Adoptive leave-any dismissal arising from the exercise of an adoptive leave right does not need 12 months’ service
  7. Parental leave and force majeure leave-12 months’ service is not required for unfair dismissal claims arising from these rights
  8. National Minimum Wage Act, 2000-any dismissal arising from the employee seeking to exercise rights under this act can be brought without 12 months’ service
  9. Carer’s Leave act-12 months’ continuous service is not required.

It is inevitable that if you bring a claim the employer may well argue that you do not have the necessary 12 months’ service and will deny that you were dismissed arising from any of the exceptions set out above.

Clearly, each case will be dealt with on its own facts and circumstances but you will need to be prepared for this argument and ready to put forward facts from which it can be inferred that your dismissal did arise from the exercise of one of the categories listed above.