A decision as to what constitutes penalisation under the Protected Disclosures Act 2014 was handed down by the High Court for the first time recently. Our Employment Group considers Conway v Department of Agriculture, Food and Marine ("Conway"), which made clear that a worker must demonstrate they have suffered harm or damage as a result of making a protected disclosure in order to succeed in a penalisation claim.
A Series of Firsts
In Summer 2020 the Circuit Court considered for the first time an application for the extension of the 21 day time limit for interim relief under the Protected Disclosures Act (the "2014 Act"). Shortly thereafter the High Court decided on another first, a request by an employer to consider an appeal of a Circuit Court interim relief order made under the 2014 Act.
The recent decision in Conway adds to this series of firsts under the 2014 Act and provides further useful guidance from the High Court on a point not previously litigated at that level.
Penalisation under the 2014 Act - High Court Analysis
Conway was a point of law appeal of a decision of the Labour Court by a veterinary inspector in relation to a penalisation claim he made under the 2014 Act. The Labour Court found, as a matter of fact, that Mr Conway, had not suffered a detriment and as such, had not been penalised for having made a protected disclosure.
Mr Conway had been successful before the Workplace Relations Commission (the "WRC") in his claim of penalisation and had been awarded ?10,000. His claim related to a four-month delay by an official of the Department of Agriculture, Food and the Marine in responding to a disclosure made by Mr Conway in May 2018. He alleged that the Department's conduct, in ignoring his protected disclosure, failing to take it seriously and failing to investigate (either at all or in a timely manner) constituted a detriment and amounted to penalisation under the 2014 Act.
As many readers will already be aware, the 2014 Act does not provide any detailed requirements or guidance for employers who have received a protected disclosure. Equally, there are no prescribed time limits within which an action must be taken, nor is there an obligation to communicate with the person who has made the protected disclosure.
It is worth noting that the 2015 Code of Practice on Protected Disclosures (SI 464/2015), which forms the basis for many Speak Up/Whistleblowing policies, states that it is important that the worker making the disclosure "has a sense that the complaint is being taken seriously and that action is being taken, not least with a view to ensuring that the concerns raised are dealt with internally." The organisation "should ensure that as much feedback as possible is given having regard to sensitivities... timelines for responses/actions should be communicated to the discloser."
The WRC decision was overturned by the Labour Court on the basis that Mr Conway had not at any point specifically identified the detriment he had suffered as a result of making a protected disclosure. As such he had not been penalised.
High Court Appeal
Mr Conway appealed the Labour Court's decision to the High Court, claiming it had erred in failing to consider the Department's non-compliance with its obligations under the 2014 Act, the 2015 Code of Practice and the 'Guidance under section 21(1) of the 2014 Act for public bodies' (available here) in determining the question of penalisation.
Ms Justice Hyland rejected the appeal. In assessing the ordinary and natural meaning of the word detriment, she concluded that it conveyed harm or damage. The Court held that the legislation requires that the 'detriment' must cause harm or damage to the person making the disclosure, "[o]ne can understand the frustration and annoyance [Mr Conway] presumably suffered...But there is no evidence whatsoever that this lack of response impacted upon the appellant's situation either in the workplace or elsewhere."
The only power the Labour Court has on appeal from the WRC, in respect of a penalisation claim is "to look at the impact upon the employee...it enjoys no jurisdiction to carry out an inquiry into the conduct of the employer in dealing with the protected disclosure". The High Court therefore concluded that the Labour Court was correct in holding that the treatment by the Department of the protected disclosure, in circumstances where it had already concluded that no penalisation had occurred, was outside the scope of its jurisdiction.
Penalisation must follow the disclosure of a wrongdoing
Another recent decision that concerned penalisation under the 2014 Act is A Telecoms Senior Professional v A Utility Company before the WRC. The hearing of this matter was limited to 2.5 hours due to COVID-19 restrictions. As a result, the Adjudication Officer ("AO") decided that in the first instance he would consider if the complainant's evidence met the burden of proof required to show he had made a protected disclosure.
The complainant is an engineer employed by the respondent utility company since 2006. In 2012, the complainant refused to raise a purchase requisition order for work carried out by the wife of his team lead as he was not comfortable doing so. He provided no explanation for his refusal. His team lead subsequently moved to another team but returned in 2017. In 2018 and 2019 the complainant received negative performance reviews.
The WRC was asked to consider whether the complainant had been penalised under the 2014 Act because of his refusal to raise the purchase requisition in 2012, for "calling out" his department manager ("DM") when the issue had been investigated and for initiating the whistleblowing process.
The complainant alleged that performance issues raised by his managers in 2018 and 2019 were an attempt by them to "dress up the penalisation". He claimed he had no choice but to issue the proceedings as he feared the conduct of his managers would ultimately lead to his dismissal.
Had a protected disclosure been made?
It was not until after the complainant received negative feedback as part of a performance review in 2018 that he informed his DM of the 2012 incident. The AO did not believe that this 2018 report to the DM constituted the making of a protected disclosure. The complainant did not explain why he was uncomfortable with the request that had been made of him in 2012. He did not describe the request as wrong, illegal or even unusual, and provided no context whatsoever:
"To make out... penalisation... an employee must show that penalisation follows from and is a consequence of having reported a wrongdoing."
The AO stated that the delay of more than six years "severely undermined" his case and found that between 2012 and 2018 the complainant "was not possessed of any reasonable belief that the issue was serious enough to warrant reporting."
In addition, the complainant's communication to the CEO and HR director criticising the DM's investigation of the issue did not fall within the parameters of the wrongdoings set out in the 2014 Act. The AO held it was not, therefore a protected disclosure. It followed that there was no basis for an investigation into the allegation that he was penalised.
These two recent cases provide a useful insight into the attitudes of both the WRC and the High Court in terms of what may or may not constitute penalisation under the 2014 Act and the burden of proof that must be overcome before it will be deemed to have occurred.
This clarification is particularly opportune as the definition of penalisation will broaden in scope with the implementation of the EU Whistleblowing Directive, by 17 December 2021. The Directive specifically provides that, among other things, negative performance assessments or employment references will fall within the remit of 'penalisation'. For further detail in relation to the changes expected see our briefing here.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.