Monday, February 24, 2020
As published in the Business Post, February 23rd 2020.
When whistleblowing legislation was introduced in 2014, many employers feared it might be abused. Those concerns remain, but a decision by the Labour Court in August last year offered grounds for optimism.
In simple terms, the Protected Disclosures Act was designed to provide a high level of protection to an employee who makes a “protected disclosure” and is penalised by their employer as a result.
The protection provided by the legislation is extensive. For example, an employee who can convince a circuit court judge that they were forced out of their job because they made a protected disclosure can obtain an injunction restraining their dismissal until the Labour Court has ruled on the case. That is a powerful tool.
As well as that, the normal award for dismissal is more than doubled in whistleblowing cases. An employee can be awarded up to five years’ remuneration in a protected disclosure case; normally, there is a threshold of two years.
In cases where there is a doubt about whether a disclosure should be deemed protected, the legislation makes the presumption that it should.
All of this means that employers have to be very careful when protected disclosures are made to them.
The legislation talks about “relevant wrongdoings”. If an employee maintains that a “relevant wrongdoing” has occurred – and the definition is broad – then there is a good chance that the employer will have to treat this as a protected disclosure.
Putting it another way, almost anything illegal or illicit that comes to an employee’s attention in the course of employment could be the subject of a protected disclosure.
This, unfortunately, brings with it the potential for abuse. An employee who is dismissed for entirely unrelated reasons – because of misconduct, for example – may choose to make a protected disclosure to frustrate their employer.
In the years since 2014, there have been a number of instances where an employee was dismissed and made a protected disclosure during their notice period after their dismissal.
The August 2019 decision is a good example of the pragmatic and fair approach the Labour Court will take in these cases. The employee in question worked for a sales and marketing firm, and was hired in 2017. Driving was an integral part of her role.
At a fairly early stage in the working relationship, it came to her employer’s attention that she was not performing her duties in accordance with her training, and also that she had a number of penalty points on her driving licence, which she had not disclosed.
Subsequently, there were serious unauthorised absence issues. The employer ultimately decided to terminate her employment.
The employee then maintained that she had made a protected disclosure and that her dismissal was as a result of this. She suggested in her disclosure that rules and regulations set by the employer during training were not being observed.
The employer argued in the Labour Court that it had dismissed the employee for reasons wholly unrelated to the protected disclosure.
Usefully, the employer had conducted an investigation into the allegations by the employee and determined that they had no foundation.
The Labour Court was prepared to accept, in theory, that a protected disclosure had been made. However, having considered the employer’s evidence, it ruled that it was clear that the employee was dismissed for reasons wholly unrelated to this.
It stood to the employer’s credit that it had considered the issues raised by the employee in the purported protected disclosure. Equally, the fact that the employer was able to show evidence for the dismissal proved valuable at the hearing.
The case was a useful reminder that employers should deal with protected disclosures with great care. In this case, the employer proceeded in a sensible way, which resulted in its position being vindicated.
For further information on the above article, or on other employment law queries, please contact Patrick Walshe.