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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.

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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.

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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.

Categories
Protected Disclosures Whistleblowing

The Protected Disclosures Act, 2014-What Employers and Employees Need to Know About Whistleblowing

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The Protected Disclosures Act 2014 came into law in July of 2014.

The Act provides protection to “workers” against dismissal for having made a protected disclosure. (A “worker” includes employees (public and private sector), contractors, trainees, agency staff, former employees and interns and members of an Garda Siochana).

The Act also provides other protections to employees such as immunity from civil liability and a right of action in tort against anyone who causes him detriment as a result of making the protected disclosure.

The principal parts of the act are Part 2 which deals with protected disclosures to various persons and Part 3 which deals with the protections afforded to the employee.

A protected disclosure involves the disclosure of information by a worker which he believes shows “relevant wrongdoing” and which came to his attention through his employment. The motivation of the employee in making the disclosure is irrelevant.

Relevant wrongdoing is defined as:

(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

 

The disclosure can be made to the employer or other responsible person.

It may also be made to a prescribed person-that is, a person prescribed by the Minister for Public Expenditure and Reform as suitable to receive disclosures eg a regulatory body.

It can also be made to a legal advisor or trade union advisor or to a government Minister.

There is also provision for disclosure to the media, or into the public domain, but the standard required of the worker is higher. For example, he must

  • reasonably believe that the information disclosed is true
  • not make the disclosure for personal gain
  • making the disclosure is reasonable
  • the wrongdoing is of an exceptional nature
  • reasonably believe that he would be penalized if he disclosed to his employer
  • reasonably believe that the evidence will be destroyed
  • the worker has previously made a similar disclosure but nothing has been done.

Reliefs for worker

Breaches of the Protected Disclosures Act 2014 can lead to a number of reliefs for the worker.

  • These include  an award of 5 year’s remuneration to the employee for an unfair dismissal as a result of a protected disclosure by the employee. This is in stark contrast to the maximum award under Unfair Dismissals legislation of 2 years remuneration. The employee can also seek interim relief from the Circuit Court preventing them from being dismissed pending the hearing of their claim for unfair dismissal as a result of a protected disclosure. See section 11 of the Protected Disclosures Act, 2014.
  • protection from penalisation by the employer (section 12 of the Protected Disclosures Act, 2014); a complaint can be made to a Rights Commissioner who can award up to 5 years’ salary to the worker.
  • Section 13 of the Act provides a right of action in tort for any detriment suffered as a result of making a protected disclosure. “Detriment” includes a) coercion, harassment, or intimidation; b) discrimination, disadvantage; c)injury, damage or loss, d) threat of reprisal.
  • Section 14 of the Protected Disclosures Act, 2014 provides immunity from civil liability for making a protected disclosure
  • Section 15 provides that it shall not be a criminal offence to make a protected disclosure
  • Section 16 provides protection to protect the identity of the whistleblower.

The employee can also bring a claim under the Protected Disclosures Act 2014 without any service requirement, unlike the requirement of 12 month’s service for an unfair dismissal claim.

So the employee can bring a protected disclosure on the 1st day in the job.

Employers are naturally worried about this as it affords a degree of protection to the employee which could be abused to prevent dismissal on reasonable and fair grounds unrelated to the protected disclosure.

Employers are also concerned that employees are protected where they wrongly believe that particular information is true. This applies even where the information does not amount to an offence.

The UK Court of Appeal decision in Babula v Waltham Forest College was a decision in such a case and held that the employee could not be expected to know that particular facts amounted to a criminal offence.

Despite this, the Act does not give the employee carte blanche to carry on any way they like and then seek the protection of the legislation by making a disclosure.

Also the Act will not protect an employee where the employee fails to comply with his own legal obligations under his contract of employment.

Whistleblowing policy

A clear, comprehensive policy to deal with whistleblowing, as opposed to workplace grievances, should be created by the employer. If the employer does not have one he leaves himself open to the discloser having to avail of external disclosure channels which may be more damaging.

It should state:

  • the employer takes whistleblowing seriously
  • examples of the type of wrongdoing that would be included in “whistleblowing”
  • that workers can raise concerns in this area outside their line manager
  • that the identity of the whistleblower will be protected and he/she can rely on confidentiality.

Nevertheless, employers will need to be careful that complaints or grievances of employees are dealt with under the grievance procedure and that protected disclosures are dealt with under a separate policy dealing with protected disclosures.

It is easy to imagine situations where an employee’s personal grievance or complaint could link to a broader “public interest” workplace concern.

This is why employers will need clear and separate policies dealing with both grievances and protected disclosures. An employer may have a hard time defending a claim that an employee is being penalised for making a protected disclosure in the absence of a clear whistle-blower policy.

If you need a whistleblower policy for your workplace you will find one in statutory instrument 464 of 2015.

Code of Practice on Protected Disclosures Act, 2014

There is a code of practice prepared by the Workplace Relations Commission setting out best practice in relation to the Protected Disclosures act, 2014.

It-INDUSTRIAL RELATIONS ACT 1990 (CODE OF PRACTICE ON PROTECTED DISCLOSURES ACT 2014) (DECLARATION) ORDER 2015-is set out in statutory instrument 464 of 2015 

Trade Secrets-Big Change in 2018

A significant change came into effect in Ireland from June, 2018 in relation to whistleblowing. A new EU wide directive concerning trade secrets (Trade Secrets Directive 2016/943) was given legal effect in Ireland by way of  a Regulation which amends Section 5 of the Protected Disclosures act 2014.

This Regulation (Statutory Instrument 188/2018) requires the whistle-blower who uses or reveals a trade secret as part of the protected disclosure to prove their motivation for dong so was in the public interest.

Prior to this change the motivation of the whistle-blower was irrelevant (Section 5(7) Protected Disclosures Act, 2014).

A trade secret must be proved by the trade secret holder or employer and it must be proved that it has commercial value because it is a secret.

If the whistle-blower cannot prove his public concern motivation he can be fined up to €50,000 and/or a term of imprisonment of 3 years.