Despite the Protected Disclosures Act 2014 (the “Act”) being commenced over 2 years ago, we have only recently seen the first case where an employee successfully secured interim relief against an employer, and the first case where an award was made for penalisation regarding a protected disclosure.
In Dougan and Clarke v Lifeline Ambulance Service two employees claimed that they had made a protected disclosure to the Revenue Commissioners in January 2016, which related to “financial matters and wrongdoing within the company”. The employees were then made redundant in June 2016.
Both employees issued unfair dismissal proceedings in the Workplace Relations Commission (the “WRC”) claiming that their dismissals were wholly or mainly due to having made a protected disclosure. The employees also applied to the Circuit Court under the Act for reinstatement while awaiting the hearing of their WRC claim.
While the Circuit Court was not satisfied that the employees’ dismissals were wholly or mainly due to them having made a protected disclosure, they did meet the threshold of establishing that there were substantial grounds for contending same.
The former employer had not agreed to reinstate the former employees. Instead it offered one employee the option to remain on “garden leave” while the other was given the option to be reengaged as a paramedic alongside the staff that he had previously disciplined and supervised. This employee had not worked as a full time paramedic since 2002.
The Court held that both employees were reasonable in rejecting these offers and ordered that their salaries be paid until the hearing of their unfair dismissal claims by the WRC.
This is the first case under the Act that has met the threshold for interim relief to be granted against an employer. The case illustrates that employers need to exercise particular caution if they are considering dismissing an employee who has previously made a complaint which could be considered a protected disclosure. If the employer cannot prove that the dismissal is not connected to the protected disclosure, it may be ordered by the Court in the interim to reinstate, re-engage or pay the former employee. Such an order allows the employee to accrue service and s/he would remain in place until the unfair dismissal claim is heard before the WRC.
In Monaghan v Áras Chois Fharraige the Labour Court granted the first award for penalisation under the Act. The award of €17,500 was made to a nursing home worker, Ms Monaghan, after it was found that she was discriminated against due to making a protected disclosure.
Under the Act, a complaint made regarding threats to health and safety will be treated as a protected disclosure rather than a grievance. The employer mistakenly believed that the complaint was a grievance and suspended Ms Monaghan from work with pay for a number of months. The Labour Court held that as the complaint made by Ms Monaghan related to health and safety threats to residents of the home, it was a protected disclosure.
The Labour Court further held that there was a causal relationship between the making of the protected disclosure and the employee being put on suspension from work. Such a penalisation is prohibited under the Act.
The Labour Court decided that Ms Monaghan's protected disclosure "was an operative reason" for her suspension. What the Court was alluding to was that the suspension was a punishment for making such a disclosure. The purpose of the Act is to guard against this.
These cases highlight the need for employers to be aware of the Act and to have in place a protected disclosure/whistle-blower policy. The possible repercussions where an employer acts contrary to the provisions of the Act are also made clear in these cases.