The recent case of Dan Philpott v Marymount University Hospital and Hospice Limited, is one of the first reported cases in which an employee sought an interim injunction before the Circuit Court under the Protected Disclosure Act 2014 (the “Act”).
The Act came into force on 15 July 2014 and includes a new form of interim relief whereby an employee, who claims to have been dismissed “wholly or mainly” for having made a protected disclosure, may apply to the Circuit Court to prevent the dismissal going ahead pending the outcome of an unfair dismissal claim. If successful, the Circuit Court may grant an order of re-instatement, re-engagement or an order for the continuation of the employee’s contract.
In this recent case of Dan Philpott, the Circuit Court provided some comfort to employers by confirming that the Courts will objectively assess an employee’s “reasonable belief” that the disclosure falls within the Act.
Mr Philpott was employed on a five year fixed-term contract by the Marymount University Hospital (the “Hospital”), commencing on 6 May 2014. The Hospital terminated Mr Philpott’s contract after seven months. Mr Philpott was informed that the termination was due to significant interpersonal difficulties between him and other staff members. However, Mr Philpott claimed that he was dismissed for making a “protected disclosure” within the meaning of the Act. With less than twelve months continuous service and in order to take a claim under the unfair dismissals legislation, Mr Philpott claimed that his dismissal was a result of a “protected disclosure” within the meaning of the Act.
Mr Philpott applied to the Circuit Court for interim relief under the Act and he sought to continue the terms of his employment contract pending the outcome of his claim for unfair dismissal.
The Judgement – some comfort for employers
The Court helpfully set out the necessary criteria which must be satisfied for it to grant interim relief to an employee. It confirmed that the relevant communications being relied on by the employee must amount to a “protected disclosure” under the Act. In addition, the employee must prove that there are likely to be substantial grounds for contending that the dismissal resulted wholly or mainly from the employee having made a protected disclosure.
The judge, Mr Justice O’Donohoe, scrutinised the employee’s assertions and was critical of the employee for making allegations without supporting evidence. While the Court fully accepted the sincerity of Mr Philpott’s belief that his allegations were genuine, it found that he had not presented information which amounted to a “protected disclosure” under the Act. The Court was not required to look at the second limb, as the employer had successfully rebutted the presumption that a “protected disclosure” was made.
Implications for Employers
Employers must be live to the possibility of employees seeking relief from the Circuit Court under the Act. However, this case shows that the Circuit Court will thoroughly examine the facts of the case before granting any relief.
Legislative update – Are wages are on the up?
Finally, the National Minimum Wage (Low Pay Commission) Act 2015 (the “Act”) was enacted on 15 July 2015 and established the Low Pay Commission (the “Commission”) to review the national minimum hourly rate of pay and make recommendations to the Minister once a year. On foot of such recommendations, the Minister must, within three months, by order declare a national minimum hourly rate of pay in the terms outlined by the Commission, or in other terms as the Minister deems appropriate.
Currently, the minimum wage rate is set at €8.65 and in its first report, the Commission concluded that the national minimum wage should rise by 50 cent to €9.15 per hour. The Commission took a number of considerations into account such as the rise in employment and improvement in competiveness among employers. The increase has received criticism from both employee and employer representatives, for being inadequate on one hand and premature on the other. However, we will now have to wait to see if the Government takes the recommendation on board or makes an alternative decision on the national minimum wage.