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Protected Disclosures

Whistleblower’s Appeal of Labour Court to the High Court on 10 Points of Law Dismissed

A Higher Education Officer in the Department of Employment Affairs and Social Protection has had his appeal to the High Court on ten points of law against the Labour Court dismissed.

The background to the case is that the employee was the subject of a disciplinary procedure due to alleged misconduct in the workplace. The alleged misconduct was categorised under three headings:

  1. Disruptive behaviour
  2. Refusing to comply with reasonable management instructions
  3. Failure to comply with Civil Service policies and procedures

The outcome of the disciplinary proceedings was the employee was to be given a final written warning. The employee appealed this decision on two occasions, neither of which were successful.

The employee made a number of protected disclosures pursuant to the Protected Disclosures Act 2014 and then submitted a claim to the Workplace Relations Commission on the basis that the disciplinary procedure through which he had been taken was as a consequence of his protected disclosures. The WRC adjudicator did not find in his favour.

The employee appealed this decision to the Labour Court who found that his claim was not well founded. He then appealed this decision to the High Court setting out ten grounds on which he claimed the Labour Court had erred in law.

High Court decision

The High Court firstly looked at its jurisdiction to deal with appeals from the Labour Court and noted that it could only concern itself with issues of law and could not look at the substantive elements of the claim itself. It is not a full appeal, and the High Court referred to the supreme Court’s consideration of the issue in Nano Nagle School v Marie Daly [2019] IESC 63.

The Supreme Court held that the issues that could be considered were:

“These included (i) findings of primary fact where there is no evidence to support them; (ii) findings of primary fact which no reasonable decision-making body could make; (iii) inferences or conclusions which are unsustainable reason of any one or more of the matters listed above; or which could not follow or be deducible from the primary findings as made; or which were based on an incorrect interpretation of documents. (See para. 54). If not included in that category, I would add a determination which is ultra vires, where there is a failure of statutory duty. Undoubtedly, deference is due to an administrative tribunal acting within the scope of its duty. But, when there is a substantial failure of compliance with that statutory duty, a court must intervene. The determination not comply with the statutory duty laid down in the Act. “

The High Court noted that it cannot substitute its judgment for that of the Labour Court, even if it wanted to. The High Court can look at “the procedures and processes followed by the Labour Court in making its findings of fact, and to consider whether its decision is sustainable at law”.

The determination of the Labour Court

The High Court found that “the Labour Court acted in accordance with the requirements for fair procedures. The appellant was present, heard directly the evidence against him and was afforded an opportunity to challenge it”.

The High Court, in dismissing the appeal, determined that the findings of fact made by the Labour Court were supported by evidence and the provisions of the Protected Disclosures Act 2014 were correctly interpreted and applied.


Read the full decision here in Pascal Hosford v Department of Employment and Social Protection.