Maximum Compensation for Penalisation Claim

Introduction

The case of A Worker v A Massage Therapy Business (ADJ-00043225) provides an interesting perspective on what factors must be considered when awarding compensation following a claim alleging penalisation under the Protected Disclosures Act, 2014. 

In this case, the complainant disclosed to her employer, concerns that wrongdoing was being carried out and further that, her health and safety, and that of a colleague, had been, was being or was likely of being endangered.

The specific allegations were that she was being asked to perform sexual acts on clients, and that a failure to do so, resulted in her being given less hours to work, less pay, and generally being treated in a worse fashion, than those who acquiesced to such illegal requests. This complaint was upheld.

Compensation for Penalisation Claims under Irish Law

The Adjudication Officer noted the wide level of discretion that he had, in making an award, noting that the applicable provisions allow him to make compensation to such an amount, that he or she “considers just and equitable having regard to all the circumstances”.

The Protected Disclosures Act 2014 is in the nature of protective legislation. Schedule 2 of the Act makes provision for maximum awards of compensation of up to five year’s remuneration in the event of a breach, which is substantially higher than the award-jurisdiction conferred on an adjudicator by any other employment statute in the state.

The Adjudication Officer made the following comments, when considering an appropriate award:

“It is clear that the legislative intention behind the Protected Disclosures Act 2014 was to afford a very high degree of protection to persons making protected disclosures, which protection was in part expressed by the conferral on an adjudication officer of an extended compensation-award jurisdiction. Schedule 2 of the Act empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”. That term is not defined in the Act.

Some guidance is available from the jurisprudence of the CJEU (formerly the ECJ) which has held that where a fundamental social right has been breached, national law must provide an effective, proportionate or dissuasive remedy. In Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll, DWT0338, the Labour Court, considering the right to annual leave stated:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law…In Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”

He went on to note that:

“The Complainant is a non-EU National who came to Ireland to study. She worked for the Respondent to support herself and fund her education. Her first language is not English. The Complainant was an exceptionally vulnerable worker. As a result of her protected disclosure, she was subjected to a change in attitude towards her, marginalisation, cuts to her working hours together with harassment, intimidation and coercion. I am satisfied that in addition to financial hardship the Complainant suffered very significant emotional distress and humiliation at the hands of the Respondent following the making of the protected disclosure.

It was also contended on behalf of the Complainant that the Respondent continues to trade and to advertise for workers on social media “to work in a friendly environment working with ladies from Thailand, Brazil and Mexico”.

In the present most exceptional case, I find that the nature and extent of the penalisation were of such an egregious nature as to merit an award of compensation at the maximum level permitted by the Act (being 260 weeks @ €350 per week) to enable the breaches to be compensated fully and with due regard to the intentions of the legislature.”

Conclusion

This was the first case in Ireland, whereby a complainant was awarded the maximum compensation available. The Adjudication Officer took note of the wide discretion that he had to make an award, that the intention of the relevant provisions was to ensure awards provide a real deterrent to other employers from penalising employees who raise protected disclosures, and given the vulnerable position of the employee, the award of maximum compensation of five-year salary, was just and equitable, in all of these circumstances.