The Protected Disclosures Act 2014 (the "Act") deals with the protection of employees who suffer a detriment as a result of disclosing wrongdoings, which have come to their attention in connection with their employment. While many employers will know that employees can be awarded up to five times their annual remuneration, what is probably less well known is that where an employee satisfies a Court that he or she has substantial grounds for contending that their dismissal was wholly or mainly due to the fact that they had made a protected disclosure, the employee can apply to Court for an interim order pending the determination of a claim in the Workplace Relations Commission (WRC).
The application is very similar to an injunction application. If the Judge decides that the employee has substantial grounds then it can invite the employer to say whether it is willing:
- to re-instate the employee; or
- if not, to re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable to the employee had he/she not been dismissed.
However, even if the employer agrees to either re-instate or re-engage the employee, the employee can object to either option. If the court thinks the employee's objection is reasonable, it can order that the employee's employment be continued until the employee's WRC claim is heard (i.e. he/she can effectively be on gardening leave until then). This is what effectively happened in the recent case of Clarke & Dougan –v– Lifeline Ambulance Service Limited.
Two senior managers (the "Plaintiffs") of Lifeline Ambulance Service Limited (the "Defendant") were purportedly made redundant by the Defendant in June 2016. They claimed that their dismissal was as a result of having made a protected disclosure to the Revenue Commissioners in January 2016 alleging that the Defendant paid their staff expenses in place of taxable pay. The Defendant claimed that the sole purpose of the disclosure was for the Plaintiffs to protect themselves against a threat to their positions because they knew that the company was conducting an external review that could lead to job losses. The Plaintiffs sought reinstatement to their roles or the continuation of their salary until their unfair dismissal claims are heard by the WRC.
In the course of the proceedings the Defendant offered re-engagement on 'gardening leave' to one of the plaintiffs and had offered re-engagement to the other working as a paramedic. The Court found that the Plaintiffs had met the threshold of establishing that "there were substantial grounds for contending [their dismissal] was wholly or mainly due to the protected disclosure". The Court ruled that the refusal of re-engagement by the Plaintiffs was reasonable. It ordered the Defendant to pay the Plaintiffs their salaries until their unfair dismissal claims are heard by the WRC on the basis that the Defendant was unwilling to reinstate the former employees.
This decision illustrates the considerable power given to the Court under the Act. Employers should note that the Court can essentially 'stop' a dismissal.
When one considers that it may take up to 6 to 9 months before an unfair dismissal claim is heard in the WRC from the actual date of dismissal, the implications of this decision are such that an employer, in dismissing an employee who has made a protected disclosure, may be ordered to continue paying a 'dismissed' employee's salary until the determination of the unfair dismissal proceedings, as well as being forced to allow that employee to continue accruing service.
In addition, if it is found by the WRC that the dismissal was due to the making of a protected disclosure, the employer may be ordered to pay the dismissed employee up to 5 years' remuneration as compensation. While there has been no case law on this point, it is assumed that any continuation order would be taken into account when calculating the amount of compensation owed to the employee. Employers should therefore exercise extreme caution when contemplating dismissing an employee who has made a protected disclosure.