Friday, February 10, 2017

Ireland - Recent Developments in Whistleblowing Law


“The world is a dangerous place, not because of those who do evil, but
because of those who look on and do nothing.” - Albert Einstein

Ireland recently introduced significant statutory protections for workers who make protected disclosures in relation to perceived wrongdoing in the workplace. One of the protections available is protection from penalisation for making a protected disclosure. The concept of penalisation is defined very broadly in Irish law as “any act or omission that affects a worker to the worker’s detriment” and includes suspension, lay-off, dismissal, loss of opportunity for promotion, intimidation, harassment and a range of other forms of unfair treatment. A complaint of penalisation may be made to the relevant adjudicatory body within six months of the relevant act. A maximum of five years' gross remuneration may be awarded as compensation for penalisation, with a potential reduction of up to 25% where an investigation of a relevant wrongdoing was not the sole or main motivation for making the disclosure.

An interesting decision was delivered by the Irish Labour Court late last year in the case of Aidan & Henrietta McGrath Partnership v Anna Monaghan. The case illustrates the circumstances in which an employer may be found to have penalised an employee for making a protected disclosure.

Here, the complainant, Anna Monaghan, was employed by a nursing home as a care assistant from 17 August 2010 to 5 December 2014. Her daughter also worked as a care assistant in the same nursing home. Ms Monaghan claimed that she made a “protected disclosure”, as defined, in the legislation and that she was penalised for doing so, in the form of two periods of suspension, one paid and one unpaid.

By way of factual background, on 30 March 2014, Ms Monaghan raised a number of issues with the matron of the nursing home, including difficulties with a named supervisor regarding her daughter’s working hours and concerns regarding the treatment of patients. She requested a meeting of care staff to discuss these matters which the matron agreed to. However, before this meeting could take place, Ms Monaghan organised a meeting of care assistants, without the matron’s knowledge, during which Ms Monaghan notified her colleagues that she had disclosed her concerns to the relevant regulatory body.

In April 2014 Ms Monaghan was called to an appraisal meeting during which the issues she had raised with the matron were discussed as well as her concerns regarding the care of residents and alleged abuse by a supervisor. Following this meeting, she was asked to commit her concerns to writing, which she did by letter dated 5 May 2016. In accordance with the required protocol for receipt of complaints, the nursing home informed the regulator of the concerns raised and of the fact that they were being investigated. The named supervisor who was alleged to have abused patients was suspended.

Following the investigation, a draft report issued which held that the allegations were unfounded. It was also noted that several staff members had alleged that Ms Monaghan was motivated by malice in making her complaints. The draft report stated that Ms Monaghan should be suspended and that the allegations of malice should be dealt with in a separate investigation. Ms Monaghan was suspended with pay.

In August 2014, all employees of the nursing home were requested to complete regulatory forms. Ms Monaghan failed to complete the necessary forms and she was issued with two reminder letters. By November 2014, Ms Monaghan had still not completed the forms and as such, was placed on suspension pending the outcome of a disciplinary meeting to be held on 14 November. It is not clear from the judgment what unfolded after this, but the judgment does state that Ms Monaghan’s employment ended on 5 December 2014.

Ms Monaghan claimed that she was subjected to penalisation in the form of intimidation, bullying, alienation, harassment, victimisation and suspension following the making of protected disclosures.

The Labour Court was satisfied that the Complainant made a protected disclosure during the appraisal meeting in April 2014 when she raised her concerns in relation to patient safety. The Court further noted that under Irish legislation the motivation for making a disclosure is irrelevant to whether the disclosure is a protected disclosure.

In view of the paucity of decided case law on what constitutes penalisation in this area, the Court considered case law from health and safety legislation which protects individuals from being penalised for raising health and safety concerns. The Court noted that in order to make out a complaint of penalisation it is necessary for a complainant to establish that the penalisation of which he or she complains was imposed “for” having made a protected disclosure. “Thus the penalisation must have been incurred because of, or in retaliation for, the making of a protected disclosure. This suggests that where there is more than one causal factor in the chain of events leading to the penalisation complained of the making of the protected disclosure must be an operative cause in the sense that “but for” the Complainant having made the protected disclosure he or she would not have suffered the penalisation. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the action in question.”

The Court held that there was insufficient evidence to support Ms Monaghan’s complaints that she was intimidated, bullied, alienated, harassed or victimised for making a protected disclosure. The Court then reviewed the two periods of suspension to assess whether penalisation had taken place.

In respect of the first period of suspension, the Court had to consider whether or not Ms Monaghan would have been placed on suspension then had it not been for the protected disclosure made to her employer in April. It looked at the motives which influenced the employer in suspending the employee at that time and found that the suspension was influenced by the complaints made by the employee prior to and in the course of the investigation. It was also influenced by what it termed the “undue haste which the suspension was effected without giving the Complainant an opportunity to comment on the report (having been invited to do so) and before the final report was issued”.

In relation to the second period of suspension, the Court found that this was wholly unrelated to the protected disclosure made and that in suspending her, the employer was not motivated by Ms Monaghan having made the protected disclosure. Rather this suspension was directly related to her continued failure to furnish the employer with various signed forms.

The Court awarded Ms. Monaghan €17,500 compensation as a result of the detriment suffered for having made a protected disclosure.

This case serves to remind employers that the workplace is a “dangerous place” at times; however, that said, it also makes clear that employees who blow the whistle on wrongdoing do not thereby immunise themselves from being subjected to investigation/disciplinary action for reasons unrelated to the making of the disclosure, albeit that it will be essential for employers to exercise caution in relation to any such action to reduce the risk of a successful claim of penalisation.