When is an ‘Act’ a Protected Disclosure?

Introduction

A recent case before the Labour Court (the Court) on appeal from the Workplace Relations Commission (WRC) examines the factors that will be considered when deciding whether an act or behaviour can be construed as amounting to a protected disclosure. 

Background

This case was an appeal by Ms Frances Murphy (the Complainant) against the decision of an Adjudication Officer ADJ-00006471, CA-00008739-004, in her claim of penalisation against her former employer, Connemara Marble Industries Limited (the Respondent), under Section 12(1) of the Protected Disclosures Act, 2014 (the 2014 Act). 

Ms Frances Murphy worked in the family business, since a child, was subsequently made a shareholder and later expressed concerns that the tills were being operated on a ‘cash basis’. She subsequently refused to work on a ‘cash till’. Ms Murphy claimed that these actions were in response to her concerns that operating on a ‘cash basis’ exposed the company to fraudulent practices. 

The Adjudication Officer held that Ms Murphy did not make a protected disclosure as defined by the 2014 Act and accordingly held that her claim was not well-founded.

Protected Disclosure Law in Ireland

The Act provides for a tiered disclosure regime and encourages a worker to make a disclosure to his/her employer or a prescribed person in the first instance. It provides that a worker may make a protected disclosure to his/her employer where he/she reasonably believes that information being disclosed shows or tends to show wrongdoing.

Section 5 of the 2014 Act contains an exhaustive definition of ‘protected disclosure’:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

Section 2 of the 2014 Act provides that “‘penalisation’ means any act or omission that affects a worker to the worker’s detriment.

Section 12(1) of the 2014 Act provides that:

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

It follows that a Complainant under the 2014 Act must demonstrate (i) that they made one or more protected disclosures, (ii) that they suffered a detriment and (iii) that there is a causal connection between (i) and (ii).

Application of Protected Disclosures Act to Case

The Court first had to establish that a protected disclosure within the meaning of the 2014 Act had been made by the Complainant before it could consider whether penalisation for the making of a protected disclosure had occurred. In this case, it was disputed that a protected disclosure in line with section 5 of the 2014 Act was made.

The 2014 Act provides in section 5(7) that a Complainant’s motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. 

It also provides in section 5(8) that where an issue arises as to whether a disclosure is a protected disclosure it shall be presumed until the contrary is proved, that it is.

In Babula v Waltham Forest College [2007] ICR 1026 the UK Court of Appeal determined that the fact that an employee may be wrong in their belief is not relevant, provided their belief is reasonable and the disclosure to their employer made in good faith.

The test for whether a communication is a protected disclosure is whether relevant information is disclosed which the employee reasonably believes shows relevant wrongdoing by the employer.

In this case, the term ‘protected disclosure’ was first raised in November 2016, after the Complainant’s suspension from her employment, when her solicitor wrote to the Respondent stating that the real reason for her suspension was the fact that she had made a protected disclosure about the inappropriate use of funds. The fact that no mention was made of the term ‘protected disclosure’ prior to this does not mean that matters raised by the Complainant before this time are not protected. 

As outlined by Humphreys J. in the recent case of Clarke-v-CGI Food Services Limited & Anor. [2020] IEHC 368:

“One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing”.

The central question for the Court was whether a disclosure of relevant information was made to the Respondent that in the reasonable belief of the Complainant tended to show a relevant wrongdoing. Given contradictory evidence submitted by the Respondents, and the fact that the Complainant could provide no actual evidence of ‘wrongdoing’ as a consequence of the operation of a cash till, the Court found against her. 

In Baranya v Rosderra Irish Meats Group Ltd [2020] IEHC 56O’Regan J outlined:

“Although the concept of a protected disclosure is effectively a term of art as defined by the 2014 Act, the word ‘disclose’ has the ordinary meaning of to ‘reveal’ or ‘make known’. In this context the statement that the communication did not disclose any wrongdoing on the part of the respondent is, in fact, factually correct as the communication by the appellant, as found by the Labour Court, did not reveal or make known any wrongdoing on the part of the respondent. In those events it was not possible to read into the communication any reasonable belief of a relevant wrongdoing on the part of the employer”.

In the case before the Court, no statement was made by the Complainant to the Respondent as to the reason why she refused to work the till in November 2016, nor a disclosure of a wrongdoing was made. It was submitted that the protected disclosure was communicated through the inaction of the Complainant in refusing to work the till. In the view of the Court, inaction on the part of the Complainant as outlined in this case did not amount to a disclosure of relevant information.

A disclosure of relevant information under the 2014 Act must relate to the provision of specific facts rather than an allegation, or expression of opinion or state of mind of the worker. The information provided must be of facts which in the reasonable belief of the worker making the disclosure tends to show wrongdoing. 

In the absence of specific facts about a relevant wrongdoing and how the disclosure of a relevant wrongdoing was communicated to the Respondent in November 2016, the Complainant failed to establish that a protected disclosure within the definition set out in Section 5 of the 2014 Act was made.