Monday, October 12, 2020
As published in the Business Post, October 10th 2020.
A whistleblower cannot be penalised for pointing out wrongdoing, and if that employee is later dismissed, the business must ensure the move has no connection to the protected disclosure.
In July this year, the High Court considered the protected disclosures regime for the first time. Since the Protected Disclosures Act came into force in 2014, all litigation until then had been exclusively in the Circuit Court.
The High Court case is an interesting one for employers. It usefully clarifies aspects of the law but, perhaps most significantly, makes it very clear that employers need to approach this area with a great deal of caution.
The Protected Disclosures Act 2014 was introduced as a response to multiple controversies involving whistleblowing cases in Ireland.
The legislation was somewhat controversial at the time of its introduction, partly because of the significant protections given to employees – described by some critics as disproportionate – and partly because of the perceived scope for abuse.
The legislation has two core points. It sets out the circumstances in which protected disclosures may be made, and it creates a regime in which an employer can be quickly and powerfully taken to task if an employee is “penalised” as a result of making a disclosure.
The legislation created the concept of “relevant wrongdoings”, which cover a variety of areas including breaches of criminal law, damage to the environment and misuse of public monies.
If an employee raises a relevant wrongdoing, their employer must take steps to deal with it: investigate or pass it to the appropriate authorities, such as the Gardaí.
Most importantly, if an employee is penalised, they can take steps to safeguard their position. Penalisation encompasses a wide variety of sanctions, ranging from unfavourable treatment to outright dismissal.
An employee can seek an injunction from the Circuit Court to restrain their dismissal and/or bring a claim in the Workplace Relations Commission, claiming up to five years’ remuneration.
In the most recent decision, handed down by the High Court in July this year, the plaintiff employee claimed he had been targeted for dismissal as a consequence of making a number of protected disclosures. He claimed that he had been the subject of unfair treatment culminating in dismissal.
The employer, on the other hand, argued in court that there was no nexus between the protected disclosure and the decision to dismiss. The employer suggested that the employee’s performance had been poor, warranting a disciplinary intervention and, ultimately, dismissal.
The court ruled in favour of the employee. Among the most significant findings, and lessons for future employers, are as follows.
First, an employee is not required to refer specifically to the Protected Disclosures Act 2014. On the contrary, an employer will be expected to effectively assume that the disclosure comes within the regime if it constitutes “relevant wrongdoing”.
Second, and significantly, the High Court was prepared to come to certain conclusions based upon the way in which the employer had acted.
Among other things, the court noted the timing of the disciplinary process – particularly the fact that performance issues were only raised after the disclosures were made.
In addition, the court seems to have been sceptical about the process itself and came to the conclusion that it was not genuine. Both of these things assisted the employee in making his case.
There are lessons to be learned here. First and foremost, if a decision is made to dismiss an individual who has previously made a protected disclosure, there needs to be a cast-iron case supporting the decision to dismiss.
An employer needs to be in a position to demonstrate that there are clear objective reasons for dismissal that are unrelated to the protected disclosure.
Failure to establish this immediately increases the risk of the employee being able to argue that they were penalised because of the disclosure.
An employer contemplating dismissing (or otherwise sanctioning) an employee then needs to be meticulous in building the case for the dismissal. In particular, they must ensure that it has no connection whatsoever to the protected disclosure.
If, for example, the role of a discloser is being made redundant, the redundancy business plan supporting the decision should be unimpeachable. If there are conduct issues, they need to be genuine ones.
Any process that begins only after a disclosure has been made is automatically going to be treated more sceptically, so the onus is on the employer to demonstrate that the process is genuine.
In tandem with this, employers should make every effort to not only investigate protected disclosures but be seen to do so.
If an employer in a dismissal or penalisation case can demonstrate that they took the protected disclosure seriously, investigated it and took whatever steps are necessary, it will definitely go to that employer’s bona fides.
The whistleblowing regime in Ireland is undoubtedly well intentioned, but there is no denying that it presents challenges for Irish employers. Navigating the regime successfully is possible, but it requires a great deal of care.
For further information on the above article, or on other employment law queries, please contact Patrick Walshe.