Protected Disclosures

Protected Disclosures

The issue of protected disclosures is becoming one which is arising in the WRC to a greater extent.

Case ADJ-00025139 is one where this arose. The Adjudication Officer helpfully set out the legislation in Section 5 setting out what is a protected disclosure.

The Adjudication Officer also pointed out as determined in PDD162 Aiden & Henrietta McGrath Partnership -v- Ann Monaghan:

‘‘A grievance is a specific matter to a worker whereas a protected disclosure is where the worker has information about a relevant wrongdoing’’.

In Donegal Co Council -v- Liam Carr PD155 the employee in that case had management responsibilities for whom he reported whereas in this case the employee was lower down the hierarchy than the person she made the complaint against. The Adjudication Officer held on that basis that the employee had a reasonable concern and it came within Section 5(2)(d) of the Act.

The Adjudication Officer then helpfully set out what penalisation involved which is set out in Section 3 of the Act. Section 12 of the Act as it was pointed out provides that an employer should not penalise or threaten penalisation against an employee.

The Adjudication Officer set out the health and safety judgment of Shamoon -v- Chief Constable of the Royal Ulster Constabulary 2003 UKHL11 as per Lord Hope 2003 ICR337 where it was said:

‘‘The test for what constitutes a determined is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstances, to his or her determined’’.

The Adjudication Officer pointed out that the Labour Court stated that there is a requirement:

“To show a chain of causation between the impugned determined and the protected act or omission”.

That view was expressed by the Labour Court in Óglaigh Náisiúnta Na hÉireann -v- McCormack HSD115.

The Adjudication Officer pointed out that as set out in case PDD201 Financial Services Union -v- Hanna that:

‘‘Redress for contravention of Section 12(1) provides for an award of compensation which is just and equitable having regard to the circumstances’’.

The Adjudication Officer in setting compensation of €6,500 did so on the basis of her loss of earnings where she was temporarily relocated for approximately seven weeks which resulted in the loss of €409.05. The Adjudication Officer also noted the impact this complaint had on the complainant resulting in her absence from work with anxiety.

In case ADJ-00023015 the Adjudication Officer in that case also quoted the case of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan, which in relation to the issue of determined by stating:

“Thus, the determined giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more then one causal factor in the chain of events leading to the determined complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned determined.”

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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