Home Knowledge First Statutory Injunction Granted under the Protected Disclosures Act 2014

First Statutory Injunction Granted under the Protected Disclosures Act 2014

The Protected Disclosures Act 2014(the Act) deals with theprotection of employees who suffer a detriment as a result of disclosingwrongdoings, which have come to their attention in connection with theiremployment. While many employers will know that employees can be awarded up tofive times their annual remuneration, what is probably less well known is thatwhere an employee satisfies a Court that he or she has substantialgrounds for contending that their dismissal was wholly or mainly due tothe fact that they had made a protected disclosure, the employeecan apply to Court for an interim order pending the determination of a claim inthe Workplace Relations Commission (WRC).

The application is very similar toan injunction application. If the Judge decides that the employee hassubstantial grounds then it can invite the employer to say whether it iswilling:

  • to re-instate the employee; or
  • if not, to re-engage the employee in another position on terms and conditions not less favourable than those which would have been applicable to the employee had he/she not been dismissed.

However, even if the employer agreesto either re-instate or re-engage the employee, the employee can object toeither option. If the court thinks the employee’s objection is reasonable, itcan order that the employee’s employment be continued until the employee’s WRCclaim is heard (i.e. he/she can effectively be on gardening leave until then).This is what effectively happened in the recent case of Clarke & Dougan–v– Lifeline Ambulance Service Limited.

Thefacts

Two senior managers (the”Plaintiffs”) of Lifeline Ambulance Service Limited (the “Defendant”) werepurportedly made redundant by the Defendant in June 2016. They claimed thattheir dismissal was as a result of having made a protected disclosure to theRevenue Commissioners in January 2016 alleging that the Defendant paid theirstaff expenses in place of taxable pay. The Defendant claimed that the solepurpose of the disclosure was for the Plaintiffs to protect themselves againsta threat to their positions because they knew that the company was conductingan external review that could lead to job losses. The Plaintiffs soughtreinstatement to their roles or the continuation of their salary until theirunfair dismissal claims are heard by the WRC.

In the course of the proceedings theDefendant offered re-engagement on ‘gardening leave’ to one of the plaintiffsand had offered re-engagement to the other working as a paramedic. The Courtfound that the Plaintiffs had met the threshold of establishing that “therewere substantial grounds for contending was wholly or mainlydue to the protected disclosure“. The Court ruled that the refusal ofre-engagement by the Plaintiffs was reasonable. It ordered the Defendant to paythe Plaintiffs their salaries until their unfair dismissal claims are heard bythe WRC on the basis that the Defendant was unwilling to reinstate the formeremployees.

Comment

This decision illustrates theconsiderable power given to the Court under the Act. Employers should note thatthe Court can essentially ‘stop’ a dismissal.

When one considers that it may takeup to 6 to 9 months before an unfair dismissal claim is heard in the WRC fromthe actual date of dismissal, the implications of this decision are such thatan employer, in dismissing an employee who has made a protected disclosure, maybe ordered to continue paying a ‘dismissed’ employee’s salary until thedetermination of the unfair dismissal proceedings, as well as being forced toallow that employee to continue accruing service.

In addition, if it is found by theWRC that the dismissal was due to the making of a protected disclosure, theemployer may be ordered to pay the dismissed employee up to 5 years’remuneration as compensation.  While there has been no caselaw on this point, it is assumed that any continuation order would be takeninto account when calculating the amount of compensation owed to theemployee.  Employers should therefore exercise extremecaution when contemplating dismissing an employee who has made a protecteddisclosure.

Contributed by Boyce Shubotham and Aedín Brennan

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