Ireland: Philpott v Marymount

Comyn Kelleher Tobin, of Cork through its Employment Law Department will furnish an article each month for Legal-Island e-mail service readers. The articles will cover current or historic employment cases decided by the higher courts of Ireland and will include legal analysis on why the decision covered each month is of such importance to the employers.

Today's article looks at Dan Philpott – v – Marymount University Hospital and Hospice Limited, the first reported case under the Protected Disclosures Act 2014 (commonly referred to as the Whistleblower Protection legislation).

FACTS

The Claimant was employed with the Respondent on a five year fixed term contract commencing on 6th May 2014. The Respondent asserted that the Claimant was dismissed by reason of significant interpersonal difficulties on 2nd December 2014. The Claimant remained absent from work on sick leave from 12th December 2014. The dismissal became effective from 2nd February 2015. The Claimant issued proceedings in the Employment Appeals Tribunal alleging Unfair Dismissal.

Separately, the Claimant sought interim relief from the Circuit Court to allow him to remain in the workplace as an employee pending the hearing of his unfair dismissal claim.

This is the first reported case under the Protected Disclosure Act ("the Act") in Ireland.

IRISH LAW

The focus of the Act is to protect "workers" (not just employees) having made a "protected disclosure" from dismissal or any other penalisation for having made such a disclosure.

A protected disclosure means a disclosure of "relevant information" which the worker believes tends to show relevant wrongdoings on the part of the employer and those wrongdoings came to the attention of the worker during their employment.

Included in the statutory definition of a relevant wrongdoing is:

1. An offence has been, or is likely to be committed.
2. A person has failed, or is likely to fail to comply with a legal obligation.
3. A miscarriage of justice has occurred, or is likely to occur.
4. The health and safety of an individual has been, is being, or is likely to be endangered.
5. The environment has been, is being, or is likely to be damaged.
6. The unlawful or improper use of funds or resources of a public body
7. The mismanagement (including discrimination) or maladministration by a public official.
8. That information tending to show any of the above is likely to be concealed or destroyed.

There is a presumption that a disclosure is a protected disclosure until the contrary is proven.

The burden of proof rests with the Respondent to show that a disclosure is not a protected disclosure. If the Respondent can prove that the disclosure does not fall within the definition above, the Claimant will not receive the benefit of the protection afforded under the legislation.

FINDINGS

The Claimant in this case made three disclosures to the Board of the Respondent alleging various wrongdoings on 7th January 2015 (while on sick leave, and following notice of his dismissal).

The disclosures can be summarised as follows:-

1. Charity funding was used for needs other than palliative care. The Claimant alleged that charitable donations were being diverted for improper use towards salaries, expenses of the Board and funding administration etc.
   
   The Court rejected the assertion.
2. Significant issues with the building, which posed and continued to pose critical risk to the health and safety of patients, staff and public, existed. Two allegations were made, one regarding water contamination (which was refuted in cross examination) and a second relating to the collapse of a suspended ceiling.
   
   The Court noted that despite the Claimant's allegations, the building had passed two HIQUA registration tests and was a "state of the art" premises.
3. There was a concern regarding mismanagement of financial resources. It was alleged that a building document was missing which was impeding remediation and loss recovery, which was indicative of a lack of control resulting in a loss of public money and charitable donations.
   
   The Court rejected this allegation following evidence that a firm of Loss Adjustors were in the process of recovering those losses and solicitors were acting in respect of the matter.

The Court ultimately held that the Applicant had failed objectively on the facts to satisfy the test that the beliefs and disclosures were reasonable, albeit accepting that the Applicant was sincere in his disclosures.

The Court refused the interim relief sought.

COMMENTARY

While the Court did not provide any great detail on its decision making process, it highlighted that it only had to satisfy itself that the beliefs and disclosures were reasonable. Having considered each of the three disclosures made, the Court felt that they were not reasonable, entitling it to refuse the relief sought.

Should the Court have found in favour of the Claimant, the consequences for the Respondent would have been significant. The Claimant in this case was given notice of dismissal in December 2014. The disclosure was not made by the Claimant until January 2015. If successful, the Claimant would have remained employed with the Respondent pending a determination of proceedings for unfair dismissal before the Employment Appeals Tribunal.

In conclusion:

1. Employers should remember that a Claimant may be awarded up to 5 years' remuneration in the event that their dismissal (or penalisation) is connected to a protected disclosure. This award can be reduced by a maximum of 25% in the event that the investigation of the alleged wrongdoing was not the main motivation for making the disclosure.
2. Employers should ensure that they have a comprehensive Whistleblower Policy in place to help minimise the risk of litigation. Employers with policies already in place should review to ensure compliance with the new legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.