First award for penalisation of a whistleblower
In the first award for penalisation under the Protected Disclosures Act 2014, a care assistant has been awarded €17,500 after making what the Labour Court determined was a 'protected disclosure' to both her employer and HIQA in relation to the alleged abuse of patients in Aras Chois Fharriage nursing home.
The Labour Court, on appeal, concluded that the employee was penalised when she was placed on paid suspension for nearly five months for having made a "protected disclosure".
- In March 2014, Ms Monaghan raised a concern with the nursing home's Matron about a supervisor and the treatment of patients. Ms Monaghan also organised a meeting of care assistants in a local pub to discuss her concerns.
- On 29 April 2014, Ms Monaghan was called to an appraisal meeting at which she was told she was “a trouble maker” and should have followed procedures. Her concerns around the mistreatment and abuse of patients were discussed and she was asked to put these concerns in writing, which she subsequently did. Ms Monaghan also made a number of phone calls to HIQA regarding her concerns. An unannounced HIQA inspection was carried out in May 2014 on the same day her employer notified HIQA that they had initiated a ‘provider led investigation’ into Ms Monaghan's concerns.
- The investigator's report found that a number of the persons interviewed had indicated that Ms Monaghan's concerns may have been motivated by malice. The report found no evidence to substantiate her allegations and recommended that she be suspended with pay pending further investigation. Ms Monaghan was suspended with pay on 20 June until November 2014.
What is a "protected disclosure"?
- The Protected Disclosure Act 2014 (the "Act") protects whistle-blowers from penalisation (including threatened penalisation) for making a "protected disclosure". 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, an example of which is the endangering of an individual's health and safety.
What did the court find?
- Ms Monaghan submitted to the Labour Court (the "Court") that her suspension constituted penalisation within the meaning of section 12 of the Act.
- The employer claimed that Ms Monaghan’s concerns were more appropriately defined as grievances, rather than falling within the definition of a "protected disclosure", such that the Act's protection did not apply.
- As a first step, the Court had to establish whether a protected disclosure had been made before it could examine whether penalisation within the meaning of the Act had occurred. The Court held that while "a grievance is a matter specific to a worker", a protected disclosure is "where a worker had information about a relevant wrongdoing". It held that Ms Monaghan's concerns, which related to "alleged health and safety risks to residents", fell within the definition of a "protected disclosure".
- While the Court acknowledged that the Act is a new piece of legislation, it noted that the provisions regarding penalisation are "broadly similar" to those provided in the Safety, Health and Welfare at Work Act 2005 (as amended) such that the Court was guided by case-law under that legislation including O'Neill v Toni and Guy Blackrock Limited. There it was held that the detriment giving rise to the complaint must have been incurred "because of, or in retaliation for", the complainant having committed a protected act.
- In considering whether or not Ms Monaghan would have been suspended had it not been for the protected disclosure made to her employer on 29 April 2014, the Court was guided by the following factors:
- the employer's motives in imposing such suspension; and
- the "undue haste" in which the suspension was effected without affording Ms Monaghan an opportunity to comment on the report.
- The Court concluded that Ms Monaghan's protected disclosure "was an operative reason" for her suspension (i.e. penalisation) and ordered the employer to pay Ms Monaghan the sum of €17,500 in compensation for the detriment suffered.
What does this mean for Irish employers?
- In the recent Lifeline Ambulance Service decision, which we have previously reviewed, the Circuit Court made the first order for interim relief under the Act, requiring the employer to pay two former employees' salaries until their unfair dismissal claims are heard by the Workplace Relations Commission, as well as being required to pay the costs of the hearing. Ms Monaghan's case represents the first award under the Act in respect of penalisation. These cases will likely encourage more employee whistle-blowers to come forward and make the connection between their protected disclosure and any penalisation or dismissal that follows.
- A recent Integrity at Work survey conducted between July and September 2016, revealed deficits in Irish employers' level of knowledge of the protections afforded to workers by the Act. Half of the employers surveyed did not know that a worker could seek a court injunction to prevent their dismissal where they have substantial grounds for contending that the dismissal was linked to a protected disclosure made by that employee.
- Furthermore, two thirds of employers surveyed had no whistle-blower procedure in place. While the Act currently only requires public sector bodies to have a whistle-blowing policy in place, it is our strong recommendation that private sector employers follow suit and put in place a comprehensive and robust policy and procedure. A clear distinction should be drawn between the raising of a grievance or complaint of bullying/harassment, and a "protected disclosure" within the meaning of the Act.
Date Published: 25 October 2016