What is Penalisation? Section 27 of the Safety, Health and Welfare at Work Act, 2005, (the ‘2005 Act’) allows employees to make a complaint to a Rights Commissioner that he has been penalised by his employer for raising a health and safety issue at work.
Penalisation is defined as any act or omission of an employer which affects a term or condition of employment of an employee to their detriment. Such an act or omission could include suspending, demoting, dismissing an employee or reducing their wages. It could also include coercion or intimidation.
A three stage test must be satisfied before claims have a prospect of success under the 2005 Act, in that the employee must have:
- made a complaint to their employer in respect of a health and safety matter; and
- suffered a detriment as a result of the actions of their employer; and
- it can be proven that they would not have suffered this detriment had a complaint not been made in the first place.
St. David’s CBS Secondary School Artane v McVeigh
The question as to whether penalisation had occurred was examined in the recent case of St. David’s CBS Secondary School Artane v McVeigh. The Claimant submitted that the Principal of the school invoked stage two of its disciplinary procedures against the employee, arising out of her request for a copy of the school’s Bullying and Harassment Policy. The employee submitted that she requested a copy of the policy because she was upset about the Principal’s treatment of her.
The Labour Court began by finding that the employee had exercised a protected right under Section 27 of the 2005 Act, when she requested a copy of the Bullying and Harassment Policy, on the basis that the employer was under a duty to provide such information as was necessary to ensure, as far as practicable, her health, safety and welfare at work.
In finding that the employee’s request for a copy of the Bullying and Harassment Policy was a request for information within the ambit of Section 27 of the 2005 Act, the Labour Court appears to have widened the type of health and safety issues which could trigger an act of penalisation by an employer. The Labour Court’s decision was grounded on an acceptance of the employee’s evidence that she believed the previous misconduct under investigation was resolved under stage one of the disciplinary procedure and that accordingly, there were no issues outstanding against her. As a result, the mere invoking of stage 2 of the disciplinary procedure, which had the capacity to impose serious sanctions against the employee, was found to constitute an act of penalisation against her.
The Deputy Chairperson of the Labour Court, Caroline Jenkinson, has previously indicated that claims arising out of general failures to comply with the 2005 Act, for example, a mere delay in dealing with complaints brought by employees, would not constitute penalisation under Section 27 and that there must be a clear chain of causation between the employers behaviour and the complaint made by the employee under the 2005 Act.
Lessons for employers
While this claim was taken under the provisions of the 2005 Act, employers should note that the refusal of a request for health and safety related information may constitute penalisation. Employers should ensure that responses to information requests do not impact negatively on an employee, to prevent any inference of penalisation arising.
Separately, this case also highlights the importance of ensuring that an employee is notified of the outcome of each stage of the disciplinary procedure as to whether the matters at issue have been resolved or otherwise, in order to ensure that the type of ambiguity which arose in this case does not re-occur.
