1. Introduction
Schedule 2 to the Protected Disclosures Act 2014, as amended by the 2022 Act, sets out the forms of penalisation prohibited by Section 12. The Schedule is comprehensive and includes both formal and informal forms of detriment. This article addresses the operation of the Schedule and the compensation available for breach.
The article also addresses the relationship between Section 12 compensation and the unfair dismissal regime, and the strategic considerations for practitioners advising on protected disclosure complaints.
2. Legislation and Case Law
The Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act 2022, transposes Directive 2019/1937 on the protection of persons who report breaches of Union law. Section 5 of the 2014 Act defines a protected disclosure as a disclosure of relevant information made by a worker in the manner specified in Sections 6 to 10. Section 5(3) sets out the relevant wrongdoings: that an offence has been, is being, or is likely to be committed; that a person has failed, is failing, or is likely to fail to comply with any legal obligation; that a miscarriage of justice has occurred, is occurring, or is likely to occur; that the health or safety of any individual has been, is being, or is likely to be endangered; that the environment has been, is being, or is likely to be damaged; that an unlawful or otherwise improper use of funds or resources of a public body has occurred, is occurring, or is likely to occur; that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; that a breach has occurred, is occurring, or is likely to occur; or 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.
Schedule 2 lists the prohibited forms of penalisation: suspension, lay-off or dismissal; demotion, loss of opportunity for promotion or withholding of promotion; transfer of duties, change of location of place of work, reduction in wages or change in working hours; the imposition or administering of any discipline, reprimand or other penalty; coercion, intimidation or harassment; discrimination, disadvantage or unfair treatment; injury, damage or loss; threats of reprisal; withholding of training; a negative performance assessment or employment reference; failure to convert a temporary employment contract into a permanent one; failure to renew or early termination of a temporary employment contract; harm, including to the worker’s reputation; blacklisting; early termination or cancellation of a contract for goods or services; cancellation of a licence or permit; and psychiatric or medical referrals.
Section 12(2) provides that compensation for breach of Section 12 may be awarded by the WRC in an amount not exceeding 260 weeks’ remuneration, or such other amount as is just and equitable in the circumstances. The 260-week cap aligns with the enhanced cap available under the Unfair Dismissals Acts for dismissals on protected disclosure grounds.
Where the detriment includes dismissal, the worker may elect to bring the complaint under Section 12 of the 2014 Act or under the Unfair Dismissals Acts. The election is significant because the substantive frameworks differ.
3. Decision
WRC and Labour Court decisions on Section 12 compensation typically address the seriousness of the detriment, the impact on the worker, the worker’s economic loss, and the conduct of the employer. The 260-week cap provides headroom for substantial awards in serious cases.
Where the detriment is a single, discrete act of relatively minor impact, awards have been modest, typically in the range of four to twelve weeks’ remuneration. Where the detriment is sustained, serious or has significant impact on the worker, awards have been substantially larger.
The factors aggravating compensation include: bad faith by the employer; the worker’s vulnerability; sustained or repeated detriment; significant impact on the worker’s health or wellbeing; and significant economic loss.
The factors mitigating compensation include: limited impact; prompt remedial action by the employer; the worker’s contribution; and the absence of bad faith.
4. Takeaway
For employers, the breadth of Schedule 2 and the size of the 260-week cap together mean that Section 12 exposure is potentially significant. The most effective mitigation is the prevention of penalisation in the first place, through clear policies and training, and the documentation of legitimate grounds for any adverse treatment.
Where penalisation has occurred, early remedial action and meaningful engagement with the worker may reduce the exposure. The factors mitigating compensation should be present in the employer’s response.
For workers, the Schedule 2 categories provide a useful checklist. Practitioners should identify each form of detriment and plead each. The aggregate exposure under the 260-week cap may be substantial.
Practitioners should also consider the election between Section 12 and the Unfair Dismissals Acts, where the detriment includes dismissal. The election should be informed by the specific facts and the comparative procedural and substantive advantages of each route.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
