Ireland: Philpott v Marymount

Last Updated: 15 September 2015
Article by Deirdre Malone

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).

CASE NAME AND REFERENCE: Dan Philpott – v- Marymount University Hospital and Hospice Limited
COURT OR TRIBUNAL: Circuit Court, Cork
JURISDICTION/SUBJECT MATTER: Interim Relief, Protected Disclosures

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.