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Protected Disclosures

Protected Disclosures Do Not Make Employees Untouchable

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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

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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.

Categories
Employment Claims

The Statutory Penalties for Breaches of Employment Law in Ireland

Are you aware of the range of penalties that are set down in legislation in Ireland for breaches of employment law?

There is a large number of statutes/acts dealing with all aspects of employment law in Ireland. These acts cover overnighting from unfair dismissal to working time to payment of wages to health and safety to annual leave and rest breaks, etc.

In addition to these penalties and employee can always go to the Civil Courts for common law claims such as breach of contract, personal injury, negligence, health and safety breaches, breach of constitutional rights, etc. That is another day’s work.

This piece is going to look at the penalties and redress for employees as set out in statute, that is, the various acts on the statute book.

Regardless of whether you are an employer or employee, you should find it useful.

Unfair Dismissal/Constructive Dismissal

The redress is set out in section 7, Unfair Dismissals Act, 1977, and in summary comprises

  1. Reinstatement or
  2. Reengagement or
  3. Compensation of up to 104 weeks’ remuneration in respect of the financial loss due to the dismissal.

If there is no financial loss an employee can be awarded 4 weeks’ remuneration.

Working Time/Rest Breaks

The penalties are set out in section 27, Organisation of Working Time Act, 1997:

  1. Require the employer to comply with the relevant provision of the act
  2. Compensation of up to 2 years’ remuneration.

Written Terms of Employment

Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be punished as set out in section 7 of the Terms of Employment (Information) Act, 1994.

The WRC adjudicator can order the employer to give the statement to the employee and can award up to 4 weeks’ remuneration by way of compensation.

Protected Disclosures/Whistleblowing

The Protected Disclosures Act, 2014 provides severe penalties in section 11 for dismissal of an employee for making a protected disclosure:

  • 260 weeks (5 years) remuneration

The employee can also bring a tort action for having suffered detriment as a result of making a protected disclosure, as set out in section 13, Protected Disclosures Act, 2014, and can seek an order from the Circuit Court as set out in section 11 of the act preventing dismissal prior to the determination of a claim for unfair dismissal.

Payment of Wages

Section 6, Payment of Wages act, 1991 sets out the penalties for breaches of the act. These include

  • Compensation of the net amount of the wages which would have been paid the previous week prior to the deduction/non payment or
  • Twice the net amount of wages that would have been paid to the employee in the week immediately preceding the deduction or payment

Minimum Notice

Compensation can be awarded pursuant to Minimum Notice and Terms of Employment Act, 1973: “may award to the employee compensation for any loss sustained by him by reason of the default of the employer.”

Agency Workers

Penalties for breach of Protection of Employees (Temporary Agency Work) Act 2012 are set out in schedule 2 of the Act. It states that the WRC can order rectification of whatever breach of the act is proved, including reengagement or reinstatement, and/or order compensation of up to 2 years’ remuneration be paid to the employee.

Adoptive Leave, Carer’s Leave, Parental Leave

Breach of the adoptive leave provisions of the Adoptive Leave Act, 1995 can see compensation of up to 20 weeks’ remuneration awarded to the employee, or the WRC making whatever directive order it feels is expedient in the circumstances.

Carer’s leave: a WRC adjudicator can award a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify, and/or up to 26 weeks’ compensation.(Carer’s Leave Act, 2001).

Parental Leave and Force Majeure Leave:  an adjudicator can award (a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified, and/or compensation of up to 20 weeks’ remuneration.(Parental Leave Act, 1998).

Maternity leave: breaches of the employees entitlement can lead to an award of compensation of up to 20 weeks’ remuneration and or grant of the leave to which the employee is entitled.(Maternity Protection act, 1994).

Transfer of Undertakings

Complaints about breaches of S.I. No. 131/2003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 can lead to compensation being awarded depending on which regulation has been breached.

The compensation can range from a maximum of 4 weeks’ remuneration to 2 years’ remuneration.

Part Time Workers

The Protection of Employees (Part-Time Work) Act, 2001 is the relevant act for part time workers.

It provides that the WRC adjudicator can require the employer to comply with the relevant provision and/or award 2 years’ remuneration to the employee.

Fixed Term Workers

The Protection of Employees (Fixed-Term Work) Act 2003 is the relevant act for fixed term workers. Section 14 of the revised act provides the WRC adjudicator can:

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Redundancy

The Redundancy Payments Act, 1967, section 7 sets out the employee’s right to a redundancy payment. Section 39 allows you to appeal the amount you have been awarded.

The Protection of Employment Act, 1977 also obliges the employer to inform and consult with employees in a collective redundancy situation. Section 11 of the Act sets out the penalties for the employer’s failure to consult and notify: a fine of up to €5,000 on summary conviction in respect of a breach of section 9 or section 10.

Discrimination and Equality Based Claims

Breaches of the Employment Equality Act, 1998 can see redress being ordered pursuant to section 82 of the Employment Equality Act, 1998:

Various orders including for re-engagement, re-instatement or compensation of up to 2 years’ remuneration or €40,000, whichever is the greater.

€13,000 can be awarded in contravention of the law in relation to a discriminatory claim in relation to access to employment.

Equal Status Acts Breaches

Equal status breaches can be penalised in accordance with the Equal Status Act, 2000. This protects you in relation to discrimination in respect of the supply of goods or services.

The maximum amount that can be awarded is the amount of the District Court limit in civil cases in contract (€15,000).

Minimum Wages

The National Minimum Wage Act, 2000 protects employees in relation to minimum wage rates. Complaints can be dealt with under section 26 of the act. The adjudication officer can order that the shortfall be rectified and paid to the employee, and the employee can also be awarded reasonable costs in respect of bringing the claim.

The employer can also be prosecuted in the District Court for breaches of this minimum wage act.

Health and Safety

Breaches of the Safety Health and Welfare Act 2005 can see an adjudication officer awarding compensation of such amount as he feels equitable in the circumstances for breach of section 27 of the act, which protects employees from penalisation or dismissal for making a complaint in respect of health and safety in the workplace.

Conclusion

The list above is not definitive, but certainly covers the most common types of employment law claim that will be brought to the WRC (Workplace Relations Commission), or Labour Court. A WRC adjudicator has a wide range of discretion for breaches of any particular act, so the various acts referred to above set out the maximum awards possible.

Categories
Protected Disclosures Whistleblowing

Employees Getting Interim Relief Orders under the Protected Disclosures Act, 2014

 

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Let’s be honest.

The Protected Disclosures Act 2014 struck fear into the hearts of employers when it first came into law.

Five years’ salary as an award for an unfair dismissal?

Interim relief orders in the Circuit Court preventing dismissals?

Eye watering stuff. How has it panned out?

Let’s take a look at the interim relief order, effectively an injunction.

The first interim relief order under the Protected Disclosures Act 2014 was granted in September, 2016. The case involved two Lifeline Ambulance Service workers who were made redundant.

They were granted an order in the Circuit Court directing the continued payment of their salary pending the outcome of a claim for unfair dismissal which they had brought to the WRC (Workplace Relations Commission). They had brought claims to the WRC, on the basis that they were unfairly dismissed for making a protected disclosure to the Revenue Commissioners.

The employees contended that they were dismissed for making a protected disclosure to the Revenue Commissioners in January, 2016, and their dismissal was connected to this.

The Circuit Court did not find that they were dismissed for whistleblowing or making a protected disclosure, but found that the employees had substantial grounds for claiming this.

This was enough-this means that the employees had met the probative burden-the burden of proof-placed on them in the Protected Disclosures Act, 2014.

Because all they had to show was “substantial grounds” for claiming a connection between the dismissal and the protected disclosure.

The Protected Disclosures act, 2014 is a strong piece of legislation with a wide range of remedies for employees, one of which is this interim relief order preventing a dismissal pending a claim for unfair dismissal for having made a protected disclosure. (Read more about protected disclosures and whistleblowing in this article).

This application for interim relief, essentially an injunction, must be made within 21 days of the date of dismissal, and the argument must be that the dismissal was carried out “wholly or mainly for having made a protected disclosure”.

If this Court finds that there are “substantial grounds for contending that the dismissal results wholly or mainly” from the making of a protected disclosure the Court can order the reinstatement or reengagement of the worker with full salary.

The Court in this case ordered the employees’ salaries to be paid until the hearing of their case at the WRC.

An employee can be awarded up to 5 years’ salary if he is successful in a WRC claim for unfair dismissal by virtue of a protected disclosure.

If you are an employer this interim relief/injunction prior to a WRC hearing, and then a potential 5 years’ salary award against you is clearly eye watering stuff.

Another Interim Relief Order Followed

In Catherine Kelly v Alienvault Ireland Limited and Alien Vault inc Ms Kelly was also granted interim relief under the Protected Disclosures Act, 2014.

Ms Kelly, an office manager, made some complaints to her employer about health and safety issues in the office workplace. The employer dismissed her and claimed that the decision to dismiss her was made some days before her complaints.

Cork Circuit Court, however, found that she had substantial grounds for claiming that her dismissal was linked to her protected disclosure and granted her an interim relief order preventing the dismissal and keeping her on full pay until her case was heard in full by the WRC.

An Unsuccessful Application

In Dan Philpott v Marymount University Hospital and Hospice Mr. Philpott was seeking an injunction preventing his dismissal under the Protected Disclosures Act, 2014.

He had commenced employment in the hospital in May 2014 on a 5 year fixed term contract.

Mr. Philpott was told, however, that his contract was going to be terminated in December, 2014 due to interpersonal difficulties between him and other staff.

Mr. Philpott sought an order in the Circuit Court preventing his dismissal on the grounds that he had made protected disclosures. The Circuit Court, however, recognised that Mr. Philpott would not have the necessary 12 months’ service for an unfair dismissal claim under the Unfair Dismissals act, 1977-2007, and found also that he had failed to meet the threshold of proof-substantial grounds-in contending this dismissal was connected to a protected disclosure.

In fact, the Court held that his disclosures did not constitute protected disclosures as defined by the Act.

It is worth noting that in all these cases the employee is not obliged to mark or label his disclosure as a protected disclosure for the Protected Disclosures Act, 2014 to apply.

The employee’s motive is also irrelevant when it comes to determine whether it is a protected disclosure or not.

Takeaway

This act has serious potential consequences for employers, particularly if an employee is dismissed, for whatever reason, after (and not necessarily immediately after) making a protected disclosure.

For employees, it is an extremely useful weapon for the employee can now obtain in the Circuit Court what is essentially an injunction preventing his dismissal pending an unfair dismissal claim.