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AOC guidelines for employers in dealing with protected disclosures

The Protected Disclosure Act 2014 (the “Act”) was introduced to give protection to all workers who makes a protected disclosure also known as whistleblowing. The Act provides protection to all workers including employees, contractors, agency workers and trainees.

In respect of an employee who was dismissed wholly or mainly from the making of a protected disclosure, the employee does not require a year’s service to claim under the Unfair Dismissal Acts, the dismissal will be deemed to be automatically unfair and the maximum compensation award is increased from two years’ remuneration to five years’ remuneration. Furthermore, an employee who makes such a claim may apply to the Circuit Court within 21 days of the dismissal for the continuation of the contract of employment until the hearing of the unfair dismissal claim. This means that the employer may be required to pay the employee’s salary and benefits up until the conclusion of the unfair dismissal claim.

In a recent case involving two employees against Lifeline Ambulances, the Circuit Court granted the employees an injunction for the continuation of the employees’ contract of employment until the hearing of the unfair dismissal claim. The Circuit Court held that it was not satisfied that the employees’ dismissal was wholly or mainly due to the protected disclosure they had made, but that the employees had met the threshold of establishing that “there were substantial grounds for contending [their dismissal] was wholly or mainly due to the protected disclosure.” Therefore, this decision indicated that once a protected disclosure was established to have been made, the employees do not have to prove that they are likely to be successful in the Unfair Dismissal case in order to be granted interim relief by the Circuit Court.

The Act also provides significant protection for whistleblowers against penalisation. “Penalisation” is widely defined in the Act and an employer is prohibited from carrying out any act or omission that effects a worker to the worker’s detriment including suspension, layoff or dismissal, demotion or loss of opportunity for promotion, transfer of duties or change of location of place of work or reduction in wages or a change in working hours. Penalisation also includes the imposition of any disciplinary reprimand or other penalty or other unfair treatment, coercion, intimidation or harassment. The redress for penalisation includes an order requiring the employer to take a specified course of action and/or require the employer to pay compensation up to a maximum of five years’ remuneration if the Adjudicator finds in the employee’s favour.

An Adjudicator made a finding of penalisation under the Act in a recent decision (Ref: ADJ-00004519) where the employee had only received a verbal warning. The Adjudicator awarded the employee €10,000 and ordered the removal of the disciplinary sanction. In this case, the employee had made a protected disclosure which had been investigated and dealt with. However, a month later, there were a number of complaints were made against the Complainant and two other employees by his colleagues and his manager. The Respondent employer provided evidence that there was no causal link between the protect disclosure and the disciplinary sanction. However, the Adjudicator appeared to base his decision on the fact that there was a breach of confidentiality in relation to the protected disclosure and the disciplinary procedures followed which resulted in a verbal warning were flawed. This decision indicates that an employer needs to ensure strict compliance with fair procedures in any disciplinary process in relation to an employee that has made a protected disclosure, even where they are unrelated.

Persons, including workers, employees and third parties, may have a cause of action in tort against a person who causes detriment to them because they, or another person, has made a protected disclosure. Such an action in tort cannot be brought together with a claim for penalisation under the Act or a claim under the Unfair Dismissals Acts. “Detriment” is defined as including coercion, intimidation or harassment, discrimination, disadvantage or adverse treatment in relation to employment, injury, damage or loss and/or threat of reprisal. This provision gives protection to persons other than the employee who actually made the disclosure and one could envisage family members or perhaps even fellow workers suffering detriment because of an act of whistleblowing using this tort.

The Act also protects a worker making a protected disclosure from defamation claims and from any civil or criminal liability in respect of same. However, the immunity in relation to criminal liability is limited to circumstances where the whistleblower reasonably believed that he was making a protected disclosure. Employers should therefore first be aware of what is a “protected disclosure” and train their managers to be able to identify a protected disclosure when made. The protections (with the exception of criminal liability) apply to the worker whether or not the worker realises that he/she is making a protected disclosure and employers may take an action in respect of the worker unrelated to the disclosure without realising the worker has such protections.

A ‘protected disclosure’ is a disclosure by a worker of ‘relevant information’. ‘Relevant information’ is defined as information which:
“(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment”.
The important points here are as follows:

The Act provides an exhaustive list of what is a “relevant wrongdoing” and it includes:

A number of alleged “protected disclosures” do not meet the above criteria usually as they do not contain information of a relevant wrongdoing but are allegations of wrongdoing. The difference between “information” and “allegation” was set out in the UK case of Cavendish Munro Professional Risks Management Ltd v. Geduild [2010] ICR 325 which dealt with the equivalent UK legislation where the definition of “qualifying disclosure” is very similar to the definition of protected disclosure in this jurisdiction. At page 331 of the decision the following was stated:
“Further, the ordinary meaning of giving ‘information’ is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating ‘information’ would be: ‘The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around’. Contrasted with that would be a statement that: ‘You are not complying with health and safety requirements.’ In our view this would be an allegation not information.”

In the Irish case of Philpott v. Marymount University Hospital and Hospice Limited [2015] IECC 1, the employee made an application under the Act for interim relief pending the hearing of the unfair dismissal claim. However, the Circuit Court refused to grant the relief as it concluded that the disclosure made by the employee did not constitute a protected disclosure as the employee did not hold a reasonable belief that the information disclosed tended to show one or more of the relevant wrongdoings under the Act.

Once it is proven that the disclosure comes within the definition of a “protected disclosure” the worker will only be entitled to a remedy if he/she proves that he/she has suffered a detriment or has been dismissed wholly or mainly from having made a protected disclosure.

It has become typical for an employee to raise a protected disclosure in the knowledge that he/she is likely to be subject to disciplinary sanction in the near future and/or restructuring is occurring which is likely to impact on his/her role. However, in some instances neither the employer nor the worker realises that a protected disclosure has been made as there is no requirement to call the disclosure a ‘protected disclosure’ and this usually occurs where an employee has raised a concern in 360 degree feedback or in a team meeting. Employers need to be extra vigilant to ensure that its managers are aware of what may be a protected disclosure and to have it followed up and/or investigated. The employee’s motivation behind the protected disclosure is completely irrelevant. However, the employer must be able to illustrate clearly that any future action relating to that employee is nothing to do with the protected disclosure.

Anne O’Connell
Employment Law Solicitors
Article dated: 12th June 2017

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