The Supreme Court has delivered an important ruling on what constitutes a protected disclosure.
This ruling is particularly timely as the Government is due to publish the Protected Disclosures (Amendment) Bill 2021 which will transpose the EU Whistleblowing Directive. Below we look at the implications of the Supreme Court ruling and how it sits with the forthcoming legislation.
Baranya v Rosderra Meats Group Limited
The plaintiff worked as a butcher in a meat factory. His role involved "scoring" many carcasses daily which the plaintiff alleges caused him significant pain. Mr Baranya was in considerable pain on the 15 September 2015 as a result of which he requested a change of role. A dispute ensued as to whether he said he was in pain because of the work or whether he simply said he was in pain. Three days later he was dismissed. He alleged it was because he made a protected disclosure on the 15 September 2015 in relation to health and safety. The company said it was because he effectively refused to do any work and walked off the production line.
Workplace Relations Commission proceedings
Mr Baranya initially brought proceedings before an Adjudication Officer (AO) in the Workplace Relations Commission (WRC) for unfair dismissal arising out of making a protected disclosure. The AO found against the plaintiff as his complaint was in the form of a personal grievance as opposed to a protected disclosure.
He appealed to the Labour Court which also found that the communication in question did not constitute a protected disclosure because it did not disclose any wrongdoing on the part of Rosderra and also that the communication in question was in fact an expression of a grievance and not a protected disclosure. The Labour Court appears to have been influenced in its finding that it was a grievance by the Industrial Relations Act 1990 (Code of Practice on the Protected Disclosure Act 2014) Declaration Order 2015 (the Code). The Code states that complaints specific to the worker in relation to "duties, terms and conditions of employment , working procedures or working conditions" are personal grievances which cannot amount to protected disclosures.
The matter was then appealed to the High Court on a point of law. Ms Justice O'Regan dismissed the appeal as she found the claimant failed to establish any error on the part of the Labour Court.
The Supreme Court started its analysis by examining what constitutes a protected disclosure and whether a complaint relating to health and safety is capable of being a protected disclosure under the Protected Disclosures Act 2014 (the Act).
A protected disclosure under the Act is defined as a disclosure of ‘relevant information’ made by a worker in the manner specified. ‘Relevant information’ is such if, in the reasonable opinion of the worker, it tends to show ‘relevant wrongdoing’ and came to their attention in connection with their employment. Among the matters defined as ‘relevant wrongdoings’ are:
- a failure to comply with a legal obligation
- a danger to the health and safety of any individual
- Commission of criminal offence
- Damaging the environment
- Miscarriage of justice, misuse of public funds
- Oppressive, discriminatory, grossly negligent acts or omissions by a public body
Mr Justice Hogan examined the specific examples of protected disclosures under the Act of which one is "health or safety of any individual"… "has been, is being or is likely to be endangered". He found that the wording is such that it is perfectly clear that the complaint does not have to relate to the health or safety of other employees or third parties; a complaint made by an employee that their own health or safety is endangered by workplace practices is clearly within the ambit of the section. The conduct in question also does not have to amount to a breach of any legal obligation. The Court noted that it may be necessary to give the term "relevant wrongdoing" an extended meaning.
The Court also examined the determination of the Labour Court in more detail as it was the finder of fact in the case with the High Court decision being an appeal on a point of law only. It considered to what extent the Labour Court was influenced by the Code. Of note is that the Code introduces a distinction between a grievance and a protected disclosure even though no such distinction is made in the Act itself. The Act itself makes no reference to the concept of a personal grievance. The Court felt that the Code did not accurately reflect the provisions of the Act and accordingly the Code erroneously misstates the law. This in turn he said led to the High Court finding that a purely personal complaint regarding health and safety fell outside the scope of the Act. He felt that this was incorrect. The Supreme Court accordingly allowed Mr Baranya's appeal and remitted the matter back to the Labour Court so it can review afresh if what Mr Baranya said amounted to a protected disclosure which led to his dismissal.
The judgment has implications for all those dealing with protected disclosures. It is also the first time the Supreme Court has ruled on the issue and in doing so has applied a more liberal interpretation of what is a "relevant wrongdoing". The Court also makes an interesting observation in relation to the public interest aspect of whistleblowing where Mr Justice Charleton in a concurring judgment indicates "the thrust of the 2014 Act does not conform to what ordinarily might be considered to define a whistleblower as a public minded individual deserving of special protection". The equivalent English legislation introduced a public interest element in 2013 but the current wording of the General Scheme of the Bill published earlier this year, makes no provision for a public interest consideration. That said, the timing of the judgment is key. Ireland is due to transpose the EU Whistleblowing Directive by 17 December 2021. This deadline is unlikely to be met as the Government has yet to publish the Protected Disclosures (Amendment) Bill 2021 but it is likely that it will be enacted in Q1 2022. The General Scheme of the Bill published earlier this year provided that "interpersonal conflicts between a reporting person and another worker, which could be channeled through the HR procedure will be expressly excluded from the definition of relevant wrongdoing". It will be interesting to see if this is amended to take account of the Supreme Court ruling and whether there is any provision made for a public interest element.
Baranya v Rosderra Meats Group Limited IESC 77
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