Can an Employee Grievance be a Protected Disclosure?

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by Greta Siskauskaite, Trainee Solicitor at Fieldfisher

Since the passage of the Protected Disclosures Act in 2014, (“the 2014 Act”) employees in Ireland have enjoyed additional protections from penalisation where they have made a protected disclosure – what is commonly known as being a “whistleblower”.

A frequent issue is whether certain employee complaints should be treated as normal personal workplace grievances or instead be considered protected disclosures. While the lines between a grievance and a protected disclosure had never been fully settled, the general position was that issues raised by an employee that are specific to how that employee has been treated are not normally protected disclosures.

This matters because significant additional protections apply to employees making a protected disclosure including the removal of the usual 12-month unfair dismissal service rule and enhanced potential awards and other remedies.

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Tibor Baranya v Rosderra Irish Meats Ltd 2021

The recent Supreme Court judgement in Baranya v Rosderra Irish Meats 2021 could be a game changer. It has significantly widened the scope of what could be considered a protected disclosure. The Court analysed whether the 2014 Act confined protected disclosures to matters of public interest or instead encompassed complaints made by employees relating to themselves.

Facts

The employee was a skilled butcher at the Rosderra meat plant (“the employer”). He alleged that he notified the employer that he was in pain as a result of his work and requested a change of roles. Three days later, he was dismissed. He claimed this dismissal was because he had raised a protected disclosure (i.e. reported his pain from his work).

The employer disputed this version of events and maintained that the employee was dismissed because he had effectively walked off the job without allowing management to address his request to change jobs. The employer also argued that the employee’s statements about pain could not be a protected disclosure as they related to his own issues at work and were not a matter of public interest.

The case began in the Workplace Relations Commission (“WRC”) and was consistently appealed until it reached the Supreme Court.

Judgement

The Supreme Court focused mainly on Section 5 of the 2014 Act, which identifies what a protected disclosure is and which sets out the types of wrongdoings that a protected disclosure can report. It provides that the following matters (amongst others) are “relevant wrongdoings” for the purposes of the Act:

  • failure to comply with any legal obligation, other than one arising under the worker’s contract of employment; and
  • that the health or safety of any individual was or is likely to be endangered

The Supreme Court determined that it was clear from the wording that any alleged contractual default on the part of an employer on any matter, including pay, was not a protected disclosure. However, where an employee complained about an alleged failure to comply with statutory obligations, then this could be a protected disclosure. The Supreme Court gave the example that if an employee made a complaint regarding the mode and method of the payment of their wages under the Payment of Wages Act 1991, then this could be considered a protected disclosure.The Court said it was clear that the employee’s complaint “does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices” was sufficient to make it a protected disclosure.

Accordingly, the Supreme Court remitted the matter back to the Labour Court for reconsideration of whether Mr Baranya’s complaint amounted to a protected disclosure, which led to his dismissal.

As a result of this judgement:

  1. Complaints by employees relating to their health and safety at work can be protected disclosures;
  2. Complaints relating to an employer’s failure to follow statutory law as it relates to a complainant employee can be protected disclosures; and
  3. Alleged breaches of an employee’s contractual rights are not considered protected disclosures.

The Court also addressed the fact that the 2015 Code of Practice on the Protected Disclosures Act erroneously differentiated between a grievance and a protected disclosure and stated that this did not accurately reflect the law.Take Away for Employers

The effects of this Supreme Court decision may prove to be quite drastic for Irish employers. In practice, employees who raise complaints about their treatment at work now have a much wider scope to claim a protected disclosure. This is particularly relevant as it may allow employees to bring unfair dismissal claims even within their first 12 months of service.

It was accepted by the Supreme Court that this was probably not the intention of the Oireachtas when it initially passed the 2014 Act. Instead they had likely just sought to offer additional protections for employees making disclosures in the public interest.

As such, we will be watching the Protected Disclosures Amendment Bill, which is expected to be published early in the New Year. This may provide an opportunity for Government and the Oireachtas to narrow the scope of the Act to what was originally intended.

In the meantime, employers should be cautious in reviewing and responding to employee complaints on the basis that these may grant the employee the protections of the 2014 Act. Where any protected disclosure issues arise, employers ought to seek legal advice.