We held a six-month probationary review meeting with our employee and decided to extend probation by a further three months, as some performance issues have arisen with this employee. She claims that we are penalising her as a result of having made a protected disclosure. What is a protected disclosure? How do I handle it?

Protected Disclosure

The Protected Disclosure Act, 2014 created protections and remedies against employers who penalised workers as a result of making protected disclosures - commonly referred to as whistleblowing. A protected disclosure is the disclosure of “relevant information” which in the “reasonable belief” of the worker tends to show one or more “relevant wrongdoings” which came to the attention of the worker in a “work related context”.

Key features

Some of the key features of the legislation are as follows:

• Claims under the legislation can be brought to the WRC, who can award up to 5 years renumeration where it determines that a dismissal arose as a result of making a protected disclosure. 
• There is no minimum service requirement to bring a protected disclosure complaint to the WRC, whereas by contrast an employee must have 12 months service to make an unfair dismissal claim. 
• Employees can make an application for interim relief before the Circuit Court to prevent or restrain a termination and seek to remain on full pay until the dismissal claim is heard by the WRC.
• The legislation also provides for an alternative cause of action in tort for an individual who has suffered a detriment as a result of making a protected disclosure. This right of action is not limited to their employer but “any person” that causes the detriment. 
• It is now a mandatory requirement for all public sector employers, and private sector employers with 50 employees or more, to have a procedure in place for employees to make a disclosure. Although, it should be noted that a protected disclosure does not need to be in writing and can be made orally.

In its Annual Report for 2023, published recently, the WRC noted a considerable increase in complaints under the protected disclosure legislation of 201% in 2023 compared to 2022.

The Protected Disclosure (Amendment) Act, 2022 (the “2022 Act”) amended the principal act by significantly expanding the definitions of “worker”; “relevant wrongdoing” and “penalisation”.  

Who is considered to be a “worker”?

What is considered to be a “relevant wrongdoing”?

What is considered “penalisation”?

 1. Protected Disclosure policy and procedure

The 2014 Act made it mandatory for all public sector employers to have a procedure in place, for employees to make a disclosure. This has been extended to the private sector under the 2022 Act. Those with 250+ employees are required to have a procedure in place since 1st January 2023 and those with 50- 249 employees since 23 December 2023.

The policy must:

• Put in place a reporting channel for receiving and progressing disclosures
• Provide a 7-day timeline for acknowledging the disclosure in writing
• Assign it to a “designated impartial person” – who can be internal or external to the organisation.

A designated impartial person is required to carry out an initial assessment of the disclosure; maintain communication with the complainant (including seeking additional information or data); take appropriate action to address the matter and close out the process. Feedback must be provided to the complainant within a 3-month timeframe, which is extendable to 6 months for complex matters.

2. Grievance or protected disclosure

The 2014 Act excluded failure to comply with a legal obligation other than “one arising under the worker's contract of employment” from the ambit of protection under the legislation. This was inserted to prevent the legislation from being used as an alternative to existing grievance procedures for disputes in the workplace.

The parameters of this exception were clarified in the Supreme Court case of Baranya v Rosderra Meats [2021] IESC 77. In this case, the employee complained to his employer that his workstation and system of work were causing him pain and requested to move roles. He was dismissed 3 days later and alleged penalisation arising from making a protected disclosure.

In the WRC, the Adjudication Officer held that although he did complain about the pain he was experiencing while working on the production line, that this communication amounted to a grievance and not a protected disclosure. His appeal was dismissed by the Labour Court, on the basis that his communication did not constitute a protected disclosure “because it did not disclose any wrongdoing on the part of Rosderra” and that the communication in question “was in fact an expression of grievance and not a protected disclosure.” The High Court dismissed his appeal on the basis that he had failed to establish any error of law on the part of the Labour Court.

However, the Supreme Court allowed the appeal on two grounds, as follows:

• The Labour Court erred in stating that purely personal complaints in relation to workplace health and safety fell outside the scope of protected disclosures.
• It considered that the Labour Court erred in failing to make sufficiently clear and precise findings of fact as to what exactly Mr. Baranya communicated to his employer.

Hogan J. held that a complaint regarding endangerment of a worker’s own personal safety by workplace practices was “clearly within the remit” of a health and safety-relevant wrongdoing.

He stated that the complaint need not relate to the health or safety of other workers or third parties to come within the scope of Section 5(3)(d). Therefore, this was a protected disclosure and not a grievance.

The 2022 Act provides for a stronger exclusion of grievances where the exclusively affect the worker making the complaint and they relate to interpersonal conflicts between them and another worker or their employer. These types of complaints may be properly dealt with through existing grievance or dignity at work procedures in place.

Conclusion

There is no doubt that the protected disclosure legislation places a significant onus on employers to ensure that all disclosures are fully investigated and dealt with. It goes without saying that employees who make protected disclosures should not be penalised as a result. Where an employee raises a potential disclosure, either verbally or in writing, the matter should proceed in line with the organisation's protected disclosure policy or other appropriate policy. Furthermore, as is the case where any sanction is being considered and imposed by an employer, this should be undertaken with due process and be fully documented. This will ensure that the organisation will be best placed to meet and defend a claim under the legislation.