knowledge 9 August 2023 |

Protected disclosures: lessons from recent case law

A protected disclosure under the Protected Disclosures Act 2014 is defined as a disclosure of ‘relevant information’ made by a worker in the manner specified in the Act. ‘Relevant information’ is such if, in the reasonable opinion of the worker, it tends to show ‘relevant wrongdoing’ and came to their attention in a work-related context. Among the matters defined as ‘relevant wrongdoings’ are, for example, failure to comply with a legal obligation, or danger to the health and safety of any individual. The Act provides for significant protection for workers against any form of penalisation, and includes the ability to apply to the Circuit Court for interim relief.

Delay

Barrett concerned an application for interlocutory injunctive relief where the Executive Director of Human Resources in An Garda Síochána had been subject to a disciplinary process which ultimately recommended his dismissal from employment. The appellant had previously made a series of disclosures to his superiors, and was later alleged to have threatened an Assistant Commissioner by text message, and to have sent certain correspondence the ‘attitude, content and tone’ of which were alleged to have been neither appropriate nor professional. His ultimate application for an interlocutory injunction was made two years and seven months after he was informed of the disciplinary process, and six months after he had ceased to cooperate with the process.

The Court of Appeal noted that the appellant’s complaints went beyond assertions of unfair procedures which might be rectified in due course by the process itself, and included more far-reaching ‘existential’ claims that the disciplinary process itself was conceived out of malice and personal animus, amounting to penalisation for having made what he alleged to be his multiple protected disclosures. He wasn’t seeking particular protection within the process, but instead sought relief for the very initiation and maintenance of the process itself.

Ní Raifeartaigh J repeated the general principle that where interlocutory relief is sought, the jurisdiction must be invoked rapidly. The appellant however, responded that had he sought relief sooner, he would have been defeated by an argument of prematurity, the notion that a court should intervene in an ongoing disciplinary process only where the process has gone irredeemably wrong such that any procedural matters could not be corrected and any adverse conclusion reached would be unsustainable in law.

However, the Court of Appeal noted that the case was ‘fundamentally and qualitatively’ different from a case where procedural protections (such as a right to cross-examine) are sought. The appellant’s arguments would, if accepted, have been fatal to the disciplinary process at its very core and could never have been cured. As such, the appellant was not entitled to “sit back and allow the process to unfold at inconvenience and expense to An Garda Síochána until the very final stages of the process”; to have waited until the disciplinary process was almost completed before seeking interlocutory relief was “a clear case of seeking to close the stable door after the horse has bolted”.

As such, the delay in seeking relief was held to be a valid reason to refuse an injunction in that case.

‘Reasonable belief’

In Barrett, the Court of Appeal emphasised that in order for something to amount to a protected disclosure, the worker must have a “reasonable belief” that it tends to show relevant wrongdoing; this introduces an objective standard, requiring that “a reasonable person would have held the belief if he or she had the same information as the worker”. As such, information coming to the worker’s attention after the communication was made is not relevant. In that case, Ní Raifeartaigh J noted that the issue of the reasonableness of the worker’s belief was a particularly difficult one at the interlocutory stage, having regard to the complicated history between the worker and senior members of the force, and the fact he had “locked horns” with senior colleagues over many years.

Court will interrogate employer’s position

In Clarke v CGI Food Services [2020] 3 IR 389, interim relief was granted restraining a dismissal. On appeal, the High Court referred to the need for a court to determine if the dismissal resulted from having made a protected disclosure or whether an alternative reason provided for the dismissal (here alleged performance-related issues) was merely an invention. In doing so, a court should consider the time the performance issues were first raised, adherence to the usual procedures for performance management and disciplinary matters, the independence of the disciplinary process and whether evidence was available from those involved in the disciplinary process.

As Ní Raifeartaigh J commented in the Barrett case, this works both ways and a court must be careful to look at the matter from all angles, as it is possible for someone to be dismissed for legitimate reasons to claim that removal was due to an improper purpose. The court will look for obvious connections between protected disclosures and later events, and will draw such inferences as are appropriate from all of the evidence. Employers should be at pains to ensure that the rationale for their actions vis-à-vis a whistleblower are well-documented, are consistent with the treatment of workers generally, and can be supported by evidence.

In Clarke, the employer sought to argue that the plaintiff had attempted to retrospectively characterise matters as protected disclosures to avail of the protection of the 2014 Act. Humphreys J did not consider that argument credible on the facts and noted that it is often only after the adverse consequences materialise that a worker must analyse matters in the statutory language; this was not to create a case from nothing. On a related point, he confirmed that an employee does not need to invoke the language of ‘protected disclosures’ or the 2014 Act when making the disclosure in order for it to be recognised as such.

Grievances or disclosures?

Baranya v Rosderra Fresh Meats [2021] IESC 77 is the only Supreme Court authority on the scope of the 2014 Act. In that case, Hogan J reemphasised that there must be some informational content, “however basic, pithy or concise”, in order for a communication to be considered a protected disclosure. There must be sufficient factual content and specificity. Hogan J also noted the anomaly in the 2014 Act in that, while there are indications in the legislation that purely private complaints that are entirely personal to the worker should fall outside the scope of the 2014 Act, such complaints (which might ordinarily be treated as mere workplace grievances by an employer) could still constitute protected disclosures even where the wrongful conduct alleged affects the worker personally and nobody else.

This extraordinary breadth raises significant operational concerns for employers following recent amendments to the legislation. On the one hand, an employee need not be specific when raising concerns that these are protected disclosures, even where these might conventionally be considered the stuff of workplace grievances. On the other hand, an employer may be significantly exposed to both civil and criminal consequences where appropriate procedures are not followed in such cases, particularly in the context of the protection for the discloser’s confidentiality. Navigating this landscape is fraught with risk, and employers should take advice at an early stage.

Burden and standard of proof

In Barrett, the Court discussed the burden and standard of proof in an application for an interlocutory injunction sought by a worker who claims there is a connection between making a protected disclosure and suffering a detriment. The 2014 Act provides that “it shall be presumed, until the contrary is proved” that a disclosure is a protected disclosure. Ní Raifeartaigh J noted the limits of that statutory presumption; it does not apply to the question of whether there is a connection between the disclosure and the alleged detriment, and that connection must be proved by the worker.

It should be noted that recent amendments to the legislation (which postdate the issues in Barrett), however, provide that in proceedings for penalisation or detriment, the alleged penalisation or detriment (as the case may be) ‘shall be deemed… to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds’.  The pressing question then becomes the standard which a court will apply in deciding whether there is a connection between the alleged detriment and the disclosure and this remains undecided.

Detriment

In Conway v Department of Agriculture [2020] IEHC 665, Hyland J concluded that to establish that a worker had suffered ‘detriment’ (which is required to establish penalisation), there must be evidence of harm or damage caused to the worker. While the point has not been decided, it is possible that the response (or lack thereof) to a disclosure could, in and of itself, potentially constitute penalisation.

Exceptions

In Nolan v Fingal County Council [2022] ELR 305, the High Court considered the legislative exception which states that a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker's employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. Phelan J held that the language of that exception “connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer” (such as the duty to provide a safe place of work). As such, it will apply in very limited instances. The Court also doubted whether “relevant wrongdoing” must concern an act or omission of the employer, which it can be expected extend to acts conducted by third party service users.

Concluding remarks

While there have been relatively few cases at Superior Court level, there has been a discernible increase in cases taken before the WRC (from 58 complaints in 2020 to 96 complaints in 2022). That expansion might be expected to continue, having regard to the enhanced remedies available to those who raise protected disclosures and employers will in many instances shoulder the burden of proof.

As such, it is important that misconceptions held by employers regarding the scope of protection are dispelled. In particular, and as noted above, the legislation may be engaged even where the worker does not adopt the language of ‘protected disclosures’ when raising issues, or where the matter is one more commonly considered a grievance. There is no express requirement within the legislation requiring that disclosures be made in good faith, nor that disclosures raise any issue of general public interest. As the landscape becomes increasingly complex, and the risks to employers more numerous, careful attention should be paid to the scope of protection set out in the case law.