Penalisation under the Safety Health and Welfare at Work Act 2005-2014*
This arose in the case of Galway City Council and Gerry Daly HSD206. The Court in this case helpfully restated the law when the Court stated;
“In O Neill –v- Toni & Guy Blackrock 21ELR1 this Court held that in order to make out a complaint of penalisation it is necessary for the complainant to establish that the detriment which he or she complains of was imposed “for” having committed one of the acts protected by sub-section (3)”.
The Court in this case went on to state in referring to the previous case that;
“Thus the detriment giving rise to the complaint must have been incurred because of or in retaliation for, the claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complaint of, the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influence the decision maker in imposing the impugned detriment”.
The Court went on to state, as was pointed out in Toni & Guy, that there are two tests inherent in the statutory definition of Penalisation. First, the claimant must have suffered a detriment of the type referred to at subsection (1) and (2) of Section 27. Secondly, the detriment complaint of must have been imposed for having committed a protected act or omission of the type referred to in subsection (3) of the section. The Court in this case pointed out that in the sense that “but for” the protected act or omission having been committed the detriment would not have been imposed. The Court pointed out that this imports a requirement to show a chain of causation between the impugned detriment and the protected act or omission.
In this case the Court pointed out that almost a year passed between the making of the protected act and the alleged detriment. The Court in this case held that the employee had not been penalised.
While it is not referred to in this particular case the issue is going always to be very difficult to prove if the employee has not suffered the detriment within a reasonable period of time after the protected act has occurred.
*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.