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Supreme Court Confirms Broad Scope of the Protected Disclosures Act & Finds the Code of Practice Is Wrong

On 1st December 2021, the Supreme Court in Baranya v. Rosderra Meats found in favour of the Appellant and directed the case back to the Labour Court. The Supreme Court held that the Code of Practice on Protected Disclosures misstates the law and does not accurately reflect the terms of what the Protected Disclosures Act 2014 actually says. It went on to find that the scope of the 2014 Act includes breaches of statutory employment law obligations and grievances regarding an employee’s health. However, it acknowledged that this did not seem to be the intention of the Oireachtas.    

Facts: The Appellant, Mr Baranya was an employee from Hungary who worked in Rosderra Irish Meats Group Limited as a skilled butcher. In June 2015, he left his job to either return to Hungary or pursue a job in the Netherlands. However, a few weeks after his contract terminated the Appellant asked for his job back. He went back to work with Rosderra in July 2015. He claimed that he was taken back on a permanent basis but Rosderra claimed that it was a 12-week contract.

In September 2015, the Appellant complained to his employer, Rosderra, about pain and that he no longer wanted to do scoring of meat. There was a dispute as to what the Appellant actually said. He contended that he told his employer that he was in a lot of pain due to the work that he had to perform and asked to move to another job. Rosderra contended that he simply stated he was in pain and did not state that it was due to his work.

The Appellant was dismissed three days later after he walked off the production line. He brought a claim against Rosderra in the WRC under the Unfair Dismissals Act. However, he did not have 12 months’ service due to him leaving his job in June 2015. The Appellant argued that he was dismissed for making a protected disclosure regarding the pain from performing his job and therefore he was exempt from requiring 12 months’ service to proceed with his claim. The WRC rejected his claim and the case was appealed to the Labour Court. The Labour Court held that the communication by Mr Baranya “related to the fact that he wanted to change roles as he was in pain.” It held that the complaint did not disclose any wrongdoing on the part of Rosderra and was in fact an expression of a grievance and not a protected disclosure. In so ruling, the Labour Court considered the 2015 Code of Practice on Protected Disclosures which was enacted by way of a statutory instrument. The Appellant challenged the Labour Court’s decision in the High Court, but this was rejected. As such, the Appellant appealed to the Supreme Court.

Decision: Delivering judgement in the case Mr Justice Hogan first referred to Section 5(3) of the 2014 Act which defines “relevant wrongdoings” as including

“…(b) that a person 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…

(d) that the health or safety of any individual has been, is being or is likely to be endangered…

He held that while Section 5(3)(b) seeks to exclude complaints which relate to the employee’s contract of employment but “even here the apparent width of the statutory exclusion is deceptive and, at one level, ineffective.” Mr Justice Hogan stated that while an employee could not make a protected disclosure by means of a complaint in respect of any alleged contractual breach on the part of the employer, there is no reason at all why a complaint made by an employee regarding an alleged failure by the employer to comply with its statutory obligations could not be regarded as a protected disclosure. He concluded that “many complaints made by employees which are entirely personal to them are nonetheless capable of being regarded as protected disclosures”.  Mr Justice Hogan confirmed that this is also true of complaints relating to an employee’s own health and safety at work.

Mr Justice Hogan then proceeded to consider the Labour Court’s determination in respect of two issues:

  1. What was the extent to which the Labour Court was influenced by the terms of the 2015 Code of Practice?
  2. What precisely were the facts found by the Labour Court itself?

In relation to the first issue, Mr Justice Hogan held that the Labour Court relied on the 2015 Code of Practice but that this was problematic because the 2015 Code of Practice did not reflect the 2014 Act and erroneously misstated the law. Specifically, he stated that this is due to it introducing a distinction between “a grievance” and “a protected disclosure” even though there is no reference to a grievance in the 2014 Act nor is there any such distinction. Furthermore, he held that the 2015 Code of Practice wrongly excludes purely personal complaints such as “duties, terms and conditions of employment, working procedures and working conditions” from the scope of a protected disclosure.

Mr Justice Hogan found that the Labour Court’s reliance on the 2015 Code of Practice here meant that the Labour Court de facto treated the 2014 Act as if it had been amended by the 2015 Code. However, such a Code of Practice cannot amend or vary an Act and therefore he held that the Labour Court’s decision cannot be allowed to stand.

In relation to the second issue, Mr Justice Hogan held that the Labour Court failed to make sufficiently clear and precise findings of fact. He stated that the Labour Court should have asked what precisely Mr Baranya said rather than simply describing the complaint, which the Labour Court did by using the words “it relates to” in its decision. Mr Justice Hogan went on to state that the Labour Court should have also inquired whether, having regard to the general context of the words actually uttered, they amounted to an allegation of wrongdoing under the Act, either expressly or by necessary implication. Mr Justice Hogan held that such failure on the part of the Labour Court was an error of law on its part and he allowed the appeal on this ground also.      

Interestingly, Mr Justice Charleton gave a separate short judgement in the case explaining why the court could not interpret the 2014 Act to reflect what may have been the intention of the Oireachtas. He also referred to the amendment made to the corresponding legislation in England and Wales in 2013, as did Mr Justice Hogan, which added the requirement that the worker must reasonably believe that the disclosure “is made in the public interest” and indicates that such an amendment is necessary to the 2014 Act in order for it to conform to “what ordinarily be considered to define a whistleblower as a public-minded individual deserving of special protection

Takeaway for the Employers: This decision puts beyond doubt that an employee’s personal grievance may also be a protected disclosure if it amounts to a breach of a statutory obligation or relates to health and safety at work. However, it will be interesting to see whether or not the anticipated Protected Disclosure (Amendment) Bill will address this and introduce the amendments that were introduced in England. The Protected Disclosure (Amendment) Bill was meant to implement the EU Whistleblowing Directive by 17th December 2021 but is yet to be published.

Link –  Hogan J. Judgement – https://www.courts.ie/acc/alfresco/0563bc09-2c03-4111-bb36-b640c1c8aef5/2021_IESC_77_Hogan%20J.pdf/pdf#view=fitH

Charleton J. Judgementhttps://www.courts.ie/acc/alfresco/6c2c35a8-7f6d-4cf6-ba12-5fde40dcf113/2021_IESC_77_Charleton%20J.pdf/pdf#view=fitH

Authors – Anne O’Connell

7th December 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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