In Ireland, the Protected Disclosures Act 2014 (the “Act”) was introduced to provide comprehensive protections against penalisation for employees in all sectors who report wrongdoing in their organisations.
One of the most striking features of the Act is the potential for employees to be awarded compensation of up to 5 years’ remuneration for having been penalised or unfairly dismissed for making a protected disclosure. Given the level of compensation, some employers were fearful that these claims could arise in the context of other employment disputes. There was a perception that some employees who may be underperforming or failing a probationary review would “blow the whistle” in the hope of staying in employment or getting a bigger award.
Another innovation of the Act was the introduction of interim relief for whistleblowers whose disclosures result in unfair dismissal. This was the first time in Ireland that interim relief was introduced into a labour law statute in Ireland. Employees must apply for this relief to the Circuit Court within 21 days following his/her date of dismissal which gives an employer limited time to prepare a defence.
Two and a half years after this Act was brought into effect, we can now assess its impact on employers.
Initially, very few cases were taken under the Act. The first application for injunctive relief came in mid-2015. However, the Circuit Court refused to grant the order sought. A claim for penalisation was separately refused by the Labour Court in June 2016, where the employee could not prove that his disclosure was a protected disclosure.
However, in July 2016 the first statutory injunction under this Act was ordered by the Circuit Court. The case involved two senior managers working for Lifeline Ambulance Service. The court found that there were substantial grounds for contending that the dismissal of the managers was wholly or mainly due to their disclosure of alleged wrongdoing to the Irish Revenue Commissioners. Since this case, there has been a second successful statutory injunction application under the Act.
In relation to penalisation, the first recorded award for penalisation was recently made by the Labour Court. The employee brought concerns regarding the treatment of patients to the attention of the matron at a nursing home where the employee was employed as a care assistant. The employee alleged that her subsequent suspension amounted to penalisation for having made a protected disclosure. The Labour Court held that the employee’s protected disclosure “was an operative reason” for her suspension. The employer was ordered to pay €17,500 as compensation to the employee for detriment suffered.
These cases highlight the very significant protections under the Act and the Courts’ increasing willingness to apply these protections. Indeed, the Eversheds employment team has noted a substantial increase in the number of whistleblowing claims in the last 6 months. It seems that after a slow start, the era of whistleblowing claims has arrived.