Protected Disclosures Act, 2014

Protected Disclosures Act, 2014

In case ADJ-00023015 the Adjudication Officer in this case helpfully set out the test of claiming that there has been penalisation.

The Adjudication Officer correctly pointed out as held by the Labour Court in the case of Aidan and Henrietta McGrath Partnership -v- Anna Monaghan PDD162 that:

“The Court must first establish that a protected disclosure has been made before it can examine whether penalisation within the meaning of the Act has occurred.”

The effect of this as the Adjudication Officer pointed out is that Adjudication Officer must determine whether a protected disclosure within the meaning of Section 5 of the Act occurred. Under Section 5 it is the disclosure of “relevant information” made by a worker.

To qualify as “relevant information” a worker must reasonably believe that the information disclosed tends to show one or more “relevant wrongdoings” and the wrongdoings must come to the workers attention in connection with their employment. In this case the employer accepted that a protected disclosure occurred.

The next question then is whether the employee was subject to penalisation. Again, in the previous case the Labour Court addressed this issue saying:

“The detriment 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 there is more than one causal factor in the chain if events leading to the detriment 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 detriment. This involves in consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

In this case the employee complained of three different incidents. The Adjudication Officer found in favour of one of these and awarded €7,500.

Issues under the Protected Disclosure Act are regularly coming up. There are some misconceptions particularly by employees. The first to these is that to claim penalisation the disclosure must occur prior to the detriment being complained of.

The second is that the employee must disclose a protected act. This is effectively wrongdoing. The employee must be able to show what the disclosure is and how the employee believes that this is a protected disclosure of a relevant wrongdoing.

The third issue is that employees believe that the level of compensation is going to be up to five years wages. Up to is the relevant word. The calculation of loss in a protected disclosure case is the same as in an Unfair Dismissal case. There is no general compensation.

Fourthly, employees sometimes do not understand that they must show that any detriment that they claim happened was as the Labour Court stated “but for” them having made the disclosure what happened would not have occurred as regards to the detriment they are complaining of.

*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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