Protected Disclosures, Qualifying Disclosure and Service Requirements

Protection Disclosure and Service Requirement

Ordinarily, an employee needs at least 12 months’ service in order to bring a claim under the Unfair Dismissals Act (the Act). However, that service requirement can be negated if an employee can show that they were dismissed for their having raised a protected disclosure.

In A General Manager -v- A Golf Club (ADJ0017277), the general manager of a golf club claimed he had been unfairly dismissed having raised a protected disclosure. He had less than 12 months’ service.

The Adjudication Officer in this matter had to make a determination as to whether or not the so called “disclosures” amounted to protected disclosures for the purposes of the Act.

The Adjudication Officer pointed to the following relevant laws and provisions.

Section 6 of Unfair Dismissal Act

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure,

The definition of what is a Protected Disclosure must rely on what is set out in the Protected Disclosures Act, 2014.

Section 5 of the Protected Disclosures Act

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.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Making a ‘Protected Disclosure’

The complainant in this matter had raised a number of health and safety concerns in relation to the management of the golf club. These included electrical testing, legionella testing and fire safety concerns. The respondent golf club noted that these concerns had been raised by the general manager and others previously. There were no revelation, they claimed.

Conclusion 

The Adjudication Officer found that, as part of his general duties, the complainant was required to report health and safety concerns to the management committee on an ongoing basis. Therefore, these revelations were part of his normal ambit of responsibility. That being the case, the Adjudication Officer found that the complainant had not made a protected disclosure worthy of the benefits of the Protected Disclosures Act. 

As the complainant did not have the necessary 12 months’ service to bring a complaint under the Unfair Dismissals Act, the Adjudication Officer held that there was no other option but to find that the complaint was not well founded.

Further Information

For further information, please contact the author of this article, Barry Crushell.