Protect and defend
The Supreme Court has taken its first opportunity to interpret the Protected Disclosures Act 2014 and to provide helpful guidance on its application. David Byrnes probes its findings.
On 1 December 2021, the Supreme Court handed down its first decision concerning the Protected Disclosures Act 2014. Mr Justice Hogan gave the decision for the court in Baranya v Rosderra Irish Meats. This was a ‘leapfrog’ appeal from the High Court, pursuant to article 34.5.4 of the Constitution.
The claim was made by an employee against his alleged unfair dismissal for having made a protected disclosure. His claim failed in the Workplace Relation Commission, and again on appeal to the Labour Court. A further appeal on a point of law to the High Court in 2020 also failed.
However, the Supreme Court allowed the final appeal brought by the employee on two grounds. The matter was ultimately remitted back to the Labour Court.
This case concerned an employee who had been a skilled butcher in the employer’s meat plant since 2000. In a disclosure made verbally to the employer, the employee alleged that he complained that he no longer wished to carry out the task of ‘scoring’ a large number of carcases on a daily basis, as this type of work caused him a good deal of pain.
The employee requested his supervisor to reassign him to a different role. The employer denied that the employee’s complaint included an allegation that any personal pain was caused by the carrying out of his butchering duties.
Three days after making the verbal disclosure, the employee was dismissed. He contended that the dismissal occurred as a result of the making of a protected disclosure. The employer contended that the dismissal was due to the employee walking off the production line, having not waited for management to address his request to change jobs.
The exact words that were uttered in the oral complaint remain an unresolved matter of dispute, since the Labour Court omitted to make any findings of fact on this issue. The Labour Court found that the disclosure was not a protected disclosure.
Front lines
A common basis for the rejection of the claim in the lower tribunals or court centred on the distinction between a complaint being a ‘grievance’ or a ‘protected disclosure’, or whether it was on a spectrum comprising an element of both.
The Supreme Court disagreed, and held that this was an error of law as a consequence of the misapplication of paragraphs 30 and 31 of SI 464 of 2015.
Paragraph 30 states: “A grievance is a matter specific to the worker, that is, that worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s grievance procedure. A protected disclosure is where a worker has information about a relevant wrongdoing.”
Paragraph 31 states: “It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation’s whistleblowing policy should make this distinction clear.”
Hogan J could not resist observing that the 2015 code “erroneously misstated the law”, as it “does not accurately reflect the terms of what the 2014 act actually says”.
In this context, the court restated that, since the decision in Cooke v Walsh (1984) and a series of subsequent decisions, it was well settled that the provisions of an administrative code or statutory instrument could not vary or amend an act of the Oireachtas – yet this is what the 2015 code purported to do to the act.
According to Hogan J, the Labour Court “erroneously stated that purely personal complaints” in relation to workplace health and safety fell outside of the scope of protected disclosures. The judge clarified that the introduction, by the 2015 code, of a distinction between a grievance and a protected disclosure was fatal, since no such distinction is drawn by the act. He stated that the act makes “no reference at all to the concept of a personal grievance”.
Hogan J considered that the apparent “width” of the statutory exclusion, by section 5(3)(b) of the act, of a complaint that is entirely personal to the worker (that is, contractual default by the employer) as to fall outside the scope of the act is “deceptive and, at one level, ineffective”.
Therefore, that particular provision may be said to have failed to achieve its objective, since an apparent contractual breach could also trigger a statutory entitlement – the example posited by Hogan J was a claim under the Payment of Wages Act 1991.
Sound the advance
In the High Court, Ms Justice O’Regan had concluded that the Labour Court correctly made a finding of fact that the verbal disclosure by the employee “related to the fact” that he wanted to change roles simpliciter – and not due to pain being caused to him from performing his butchering duties – and that this communication, therefore, did not disclose any “relevant wrongdoing” on the part of the employer, as defined by section 5(3) of the 2014 act.
The Supreme Court disagreed. Hogan J emphasised that this is where “the role of the fact-finder assumes critical importance”. The Labour Court, as the tribunal of fact, was obliged to find primary facts, and then to draw such conclusions or inferences as deemed appropriate from the evidence.
He stated that the Labour Court had erred in law by failing to properly deal with this “critical issue”, and did not make “sufficiently clear and precise” findings of fact as to what words “exactly” were uttered by the employee in the verbal disclosure, and also of the “precise context” in which such words were uttered.
Hogan J stated that it is only after having established such facts that the Labour Court ought then to have determined the question of “did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered” – even if that complaint was “personal” to the discloser only.
Rather than making findings of these facts, the Supreme Court stated that the Labour Court had merely set out a “description of the complaint”, which itself was “ambiguous on this critical issue”. The effect of this rendered it “unclear” as to whether or not the employee alleged that he was in pain, which was, in fact, caused by the workplace health-and-safety issue – a central question to the issue of causation.
Uphill battle
Hogan J clarified that the act did not attach any public-interest requirement for a disclosure to be protected. The court stated that it seemed implicit, in both the long title of the act and “aspects of its general structure”, that the Oireachtas “envisaged that most complaints” for which protection was sought would relate to matters of general public interest.
However, Hogan J clarified that the “actual definition” of a protected disclosure under the act was “not so confined”, and it therefore extended to complaints made in the context of employment matters that were personal to the whistleblower. As such, the court took the view that the Oireachtas must have intended, in general terms, that such private complaints were also a matter of public interest.
Shield wall
Hogan J confirmed that a disclosure of ‘relevant information’, as defined by section 5(2) of the act could be contained within an ‘allegation’, so long as it contained information, “however basic, pithy or concise” that tended to show relevant wrongdoing.
He further explained that this required “sufficient factual content and specificity for this purpose … even if it does merely by necessary implication” – thereby endorsing the 2018 English Court of Appeal decision in Kilraine v London Borough of Wandsworth.
In his concurring judgment, Mr Justice Charleton agreed that section 5(7) of the act made it clear that the motivation for the making of a disclosure was irrelevant to the question of whether a disclosure was protected under the act.
He emphasised that, although whistleblowers were seen in the “public mind as being motivated by the noblest sentiments”, what mattered was the reasonably held belief of the discloser that relevant wrongdoing had (or may have) occurred, “whether what impels their revelation is bitterness or genuine selflessness”.
Charleton J offered two discrete and useful examples of disclosures that may be made in the context of a meat factory. The first is where an employee discloses that animals were not being properly stunned, and where the complaint of this to management went ignored, which he considered would be a matter of safety to other workers and also an inhumane treatment of animals.
The second would be an employee telling a line manager that the employee’s foot had become cut and possibly infected, and that sick leave was required.
He rationalised that, although it may “reasonably be anticipated” that the act protects the former disclosure only, it would actually provide protection for both disclosures. It seems, from these examples, that a broader principal may be gleaned from it.
Spoils of war
This is the first opportunity that the Supreme Court has had to interpret the Protected Disclosures Act 2014 and to provide guidance on its application. It offers a welcome clarification to the act, which has been the subject of only a handful of High Court decisions.
The distinction between what the Oireachtas may have ‘envisaged’, as opposed to the ‘actual definition’ of a protected disclosure, means that personal grievances raised by employees are not necessarily excluded by the act – personal complaints may themselves be matters of public interest.
It is beyond doubt that the statutory instrument comprising the 2015 code will now have to be revised in the light of this authoritative decision of the Supreme Court, in order to address the anomaly contained therein concerning a ‘grievance’ and a ‘protected disclosure’. Until that is carried out, it seems that tribunals or courts ought to disapply that anomaly – the 2015 code has an inbuilt statutory exception to allow it be admissible in evidence.
This is a case that sends out a strong reminder to employers that a verbal complaint – not only a written one – can trigger the protections under the act. It also sends out a strong warning to whistleblowers that, although the form that a complaint of relevant wrongdoing may take is not limited or constricted by the act, cases of verbal complaints will inherently have to be resolved by a court or tribunal deciding whether it accepts the evidence of an employer over that of an employee concerning the exact words uttered.
Whistleblowers should, therefore, consider committing a complaint to writing to the employer (if made verbally in the first instance), and as soon thereafter as may be reasonably practicable, but before penalisation or detriment may occur.
It is clear that a disclosure that is made by the making of an allegation is sufficient to meet the requirement of disclosing “relevant information”. The allegation must contain “basic, pithy or concise” information that “tends” to show relevant wrongdoing, suggesting that this is confined to disclosures made internally to the employer.
It clarifies that a complaint that may contain wide-ranging allegations will still be deemed to be a protected disclosure, even if vigorously expressed, basic in nature, or not fully or properly substantiated.
The clarification that a disclosure can be made verbally is consistent with the decision of Mr Justice Humphreys in Clarke v CGI Food Services Ltd (2020). That leading decision upheld an interim injunction pending the outcome of a claim for unfair dismissal in the WRC – granted by the Circuit Court pursuant to section 11 and schedule 1 of the act.
This judgment is authority for the proposition that, at the time when making a disclosure, a whistleblower need not specifically identify, label, or have even treated it as being a protected disclosure.
The High Court clarified that a whistleblower might not even realise that a complaint is, in fact, a disclosure that is protected by the act until sometime afterwards – perhaps only after the discloser receives the benefit of legal advice.
Indeed, Humphreys J stated that it is often not until well after the dust has settled, and the detriment caused by the employer has been suffered, that a whistleblower will come to realise that penalisation had occurred as a result of the making of a disclosure that was protected.
In the trenches
It is important to recall that, to attract the protections of the act, a crucial ingredient of a disclosure that is made internally to an employer is for the whistleblower to possess the reasonable belief that the relevant information “tends” to show relevant wrongdoing. A whistleblower is not required by the act to first make a disclosure internally, or at all. However, to attract the protections for a disclosure made externally under section 10 of the act, a whistleblower will need to show that the allegation is “substantially true”.
While it may be the case that most whistleblowers will be viewed as being sincerely motivated to disclose wrongdoings of differing natures and degrees, the Supreme Court has clarified that even an ill-motivated whistleblower who discloses relevant wrongdoing is entitled to be protected. Such is the significance of the protections afforded to whistleblowers under the act, that these were characterised by Charleton J as being “extreme” and “special”.
Tribunals have been given a clear reminder of their obligation to make clear findings of fact, as distinct from making what is nothing more than ambiguous or descriptive commentary. This decision also clarifies that the context in which a disclosure is made is an essential part of the fact-finding process. These are a welcome restatement of fundamental principles, in the context of whistleblower protection.
This decision represents a benevolent interpretation of the act by the Supreme Court. It also provides helpful guidance for tribunals, courts, and legal advisors on how to apply the provisions of the act.
Look it up
Cases:
Legislation:
Read and print a PDF of this article here.