And the whistle is finally blown… First order for interim relief under the Protected Disclosures Act 2014
Two employees of Lifeline Ambulance Service were dismissed by reason of redundancy in June, 2016. Recently, they secured an interim Order from the Circuit Court (the "Court") directing their continued payment of salary pending the outcome of their respective claims for unfair dismissal before the Workplace Relations Commission (the "WRC").
While the Court held at the interim stage that it could not find that the employees' dismissal was wholly or mainly due to their whistle-blowing, the Court ordered the employer to pay both former employees' salaries until their unfair dismissal claims are heard by the WRC - some months from now. Costs were also awarded against the employer.
This is the first case where such relief has been granted. The situation is a reminder that dismissing an employee where a connection can be made between the dismissal and the making of a protected disclosure can be costly and public, even before the claim for unfair dismissal is heard before the WRC.
Whistle-blower protection in Ireland
- The introduction of Ireland's Protected Disclosures Act (the "Act") in July 2014 was tipped by many commentators at the time to be the strongest whistleblowing protection in Europe. The Act not only consolidated Ireland's previous piecemeal legislative approach in this area, it actively promoted a cultural shift towards encouraging employee whistle-blowers by offering substantial protections.
- These protections where the worker made a protected disclosure range from (i) guaranteed anonymity (with limited exceptions); (ii) protection from actual and threatened penalisation; and (iii) both civil (other than defamation) and criminal immunity, to (iv) a significant maximum award of five years' remuneration for dismissal on grounds of having such a protected disclosure.
- Furthermore, the Act introduced a new form of interim relief whereby an employee claiming to be dismissed for having "blown the whistle" could apply to the Circuit Court (the "Court") to restrain the dismissal pending the outcome of their unfair dismissal claim.
Recap - what is a "protected disclosure"?
- The concept of what constitutes a "protected disclosure" and who constitutes a "worker" are both widely defined terms under the Act. A "protected disclosure" is a disclosure of "relevant information" in accordance with the Act. Such information must, in the "reasonable belief of the worker", tend to show a "relevant wrongdoing" and must have come to the attention of the worker "in connection with the worker's employment". "Relevant wrongdoings" are defined in an exhaustive list, examples of which include the commission of an offence, non-compliance with a legal obligation etc.
- The Act puts in place a "tiered" system of reporting, with different evidential burdens attaching to each tier. Workers are therefore encouraged to report any "relevant wrongdoing" to their employer in the first instance as this level of reporting is the least onerous requiring employees only to have a "reasonable belief" that they are disclosing a relevant wrongdoing which they discovered through work. Significantly, the motivation of the worker is irrelevant.
- The second tier of disclosure is to a "prescribed person", e.g. a regulator. At this level, in addition to the evidential burden set out at tier one, a worker must also reasonably believe that any allegation contained in the information disclosed is "substantially true". The final tier is wider - public disclosure e.g. the media. At this level, in addition to the foregoing evidential burdens, the worker must also demonstrate that the disclosure was not made for personal gain and that the worker reasonably believed that he/she could not disclose it to their employer or to a regulator.
Can whistle-blowers halt their dismissal?
- Yes. An employee who claims to have been dismissed "wholly or mainly for having made a protected disclosure" may apply for interim relief to the Court within 21 days of the date of dismissal (or such longer period as the Court may allow).
- Where it appears to the Court that it is "likely that there are substantial grounds for contending that the dismissal results wholly or mainly" from the making of a protected disclosure, it will announce its findings and ask the employer whether it is willing to either reinstate the employee or re-engage the employee in another position on terms and conditions that are not less favourable pending the determination or settlement of the claim. If the employer fails to attend the Court or is unwilling to reinstate or re-engage the employee, the Court can order the continuation of the employee's contract of employment and the continued payment of salary.
What happened in the Lifeline Ambulances Case?
- Following their dismissal on grounds of redundancy in June 2016, two employees of Lifeline Ambulance Service applied to the Court for interim relief under the Act, seeking either reinstatement or continuation of their salary pending the outcome of their respective claims for unfair dismissal before the WRC. The employees asserted that their dismissals were connected to the fact that they had made protected disclosures to the Revenue Commissioners in January 2016. It is noteworthy that, unlike the Philpott case (the only other case on this point), Lifeline Ambulance Service did not dispute that the employees had made such a protected disclosure.
- While the Court held that it could not find that the employees' dismissal was wholly or mainly due to the protected disclosure they had made on the evidence presented, it found that the employees had met the threshold of establishing that there were "substantial grounds" for such a contention. This is a sufficient threshold to permit the granting of the Order under the Act.
- Although Lifeline Ambulance Service offered to re-engage each employee, one on garden leave and the other as a paramedic, the Court found that the respective employees' refusal of such offers was "reasonable". Instead, the Court ordered the employer to pay both former employees' salaries until their unfair dismissal claims are heard by the WRC - some months from now. Costs were also awarded against the employer.
What does this mean for Irish employers?
- Now that the Act has yielded its first successful injunction, it is expected that other employee whistle-blowers may follow suit when connecting the dots between their termination of employment and any past protected disclosure. The test is whether the employee can demonstrate "substantial grounds" for contending that their dismissal was linked to their protected disclosure. There is no requirement for the applicant to prove that the dismissal was, in fact, wholly or mainly due to the whistleblowing.
- Following the Lifeline Ambulances case, hitting this relatively low evidential bar may prove to be financially attractive to employees where the Court can order their salaries to be continued until the hearing of the unfair dismissal claim before the WRC – a forum at which there is no scope for costs to be awarded against the employee and no deterrent to bringing such a claim. This potential interim relief, coupled with the subsequent prospect of a maximum award of five years' remuneration in respect of the unfair dismissal, is a stark warning to employers to tread carefully when dismissing employees who have previously made a protected disclosure.
Please contact Ailbhe Dennehy, Karen Killalea or your usual A&L Goodbody contact if you have questions about this article.
Date Published: 21 September 2016