The Safety, Health and Welfare at Work Act, 2005 (the “2005 Act”) prohibits employers from penalising employees for making complaints in respect of health and safety matters in the workplace.
Penalisation under the 2005 Act is defined as any act or omission of an employer which affects a term or condition of employment of an employee to their detriment. Penalisation could include suspending, demoting, dismissing an employee or reducing their wages. It could also include coercion or intimidation.
Take for example, the case of an employee who was transferred to another location by his employer after he had made a complaint that safety equipment necessary to carry out work was not provided by his employer. Even if an employer has a contractual right to transfer an employee, such a move may amount to penalisation if the employer is found to have been motivated to exercise that right because the health and safety issue had been raised by the employee.
Recent case law and commentary from the Labour Court
The Labour Court has made clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation. Speaking at a recent conference, the Deputy Chairperson of the Labour Court, Caroline Jenkinson, said that there were a number of misconceived claims before the Court arising out of general failures to comply with the 2005 Act and that remedies for such failures do not come within the jurisdiction of the Rights Commissioner Service or the Labour Court.
This was reflected in the recent case of St. John’s National School v Akduman (HSD102). In finding for the school, which was represented by MH+C, the Labour Court noted that complaints which could result in penalisation claims should be distinguished from complaints which may be made to the Health and Safety Authority for general failures of employers to abide by the provisions of the 2005 Act.
The employee in this case claimed that she had been bullied and harrassed, as a result of making a separate bullying and harassment complaint to her employer, and that the employer delayed in dealing with the issues. The Court found that where the alleged conduct was initiated before the complaint was made and was alleged to continue thereafter, it could not be said that the conduct was because of the initial complaint, or that but for the complaint, it would have ceased. In consequence the Court did not have to make findings on the veracity of the complaints. The Court also indicated that a mere delay in dealing with such complaints would not of itself constitute penalisation under Section 27.
By way of further example, in Patrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081), a foreign national employee claimed that he did not receive any proper health and safety training by his employer, a construction firm, in a language he could understand. The claimant also claimed that he was not informed of any safety statement or appropriate preventative measures. The claimant was injured having fallen off a ladder.
His claim for penalisation under the 2005 Act failed on the basis that there was no causal connection between the alleged omissions and any act of the claimant. In its determination the Labour Court noted that it was clear from a plain reading of the 2005 Act that a employee must establish not only that he or she suffered a detriment, but that the detriment was imposed because of, or was in retaliation for, the employee having made a health and safety related complaint.
What Employers should be aware of
It is clear that employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they:
a) made a complaint to their employer in respect of a health and safety matter; and
b) suffered a detriment as a result of the actions of their employer; and
c) It can be proven that they would not have suffered this detriment had a complaint not been made in the first place.