The question in this Supreme Court appeal case was whether a communication made by an employee in a meat plant to his supervisors on 15th September 2015 constituted a “protected disclosure” for the purposes of s.5 of the 2014 Act. It concerned a health and safety matter, albeit one which had an individual impact on the claimant - he said he informed his employer that he no longer wanted to do 'scoring' work as it caused him a good deal of pain. The Supreme Court provided an excellent summary of the key points and findings…

In the leading judgment Hogan J first considered the definition of the term “relevant wrongdoings” in s. 5(3) of the 2014 Act. He observed that whilst the provision might on its face appear to exclude from its scope purely private complaints which are personal to the worker, upon further analysis such an exclusion was clearly deceptive and, on one level, ineffective. This, it is reasoned, is apparent from the scope of s. 5(3)(b), which seems to exclude complaints made in respect of an alleged contractual default but include complaints of an alleged failure on the part of an employer to comply with his or her statutory obligations in respect of a worker’s contract – which could, of course, be entirely personal to the employee concerned.

This being so, Hogan J concluded that s. 5(3)(d), the key provision for the purposes of this appeal, must also be capable of encompassing complaints which are entirely personal to the complainant.

Hogan J then considered the extent to which the Labour Court was influenced by terms of the Code of Practice on Protected Disclosures Act 2014 (Declaration) Order 2015 (SI No. 464 of 2015) (“the 2015 Code of Practice”), a question that Hogan J felt compelled to address after it was raised by a member of the Court in the course of oral argument given its wider significance. Hogan J observed that the 2015 Code of Practice draws a distinction between “a grievance” and “a protected disclosure” even though no such distinction is drawn by the 2014 Act, which makes no reference at all to the concept of a personal grievance.

Hogan J also highlighted that the 2015 Code of Practice states that complaints specific to the worker in relation to “duties, terms and conditions of employment, working procedures or working conditions” are personal grievances which cannot amount to protected disclosures. In these two respects, Hogan J held that the 2015 Code of Practice misstates the law. This being so, Hogan J considered that the Labour Court erred in relying on the 2015 Code of Practice in determining that Mr. Baranya did not make a protected disclosure and that on this ground alone the decision cannot be allowed to stand.

The final issue considered by Hogan J was the question of what Mr. Baranya actually said. Given the dispute as to what was actually said and the precise context in which those words were uttered, Hogan J held that it fell to the Labour Court to make very clear findings of facts on these points. In particular the Court is obliged to find the primary facts (i.e., what was actually said) and then to draw such conclusions or inferences from those words and their surrounding general context (which, it is held, the Court is entitled to take account of) as it thought appropriate. Having failed to make such findings of fact, Hogan J concluded that the Labour Court can only be regarded as having erred in law on its part. On this basis, therefore, Hogan J also allowed the appeal.

In his concurring judgment Charlton J agreed with Hogan J on all aspects of his reasoning but sought to also point out that, although it may be natural or common place to infer a public interest requirement into the 2014 Act, such an inference would beyond the realm of judicial construction of statutes. Charlton J explained that in the present appeal the wording of the legislation is plain: when disclosing issues relating to the health and safety of any individual pursuant s. 5(3)(b), there is no requirement that that disclosure be in the public interest.

The case was remitted back to the Labour Court:

"... so that it can determine afresh whether the utterances of Mr. Baranya amounted to a “protected disclosure” for the purposes of the 2014 Act in the light of the conclusions and general guidance contained in this judgment. In the event – but I again stress only in that event - that that Court were to decide that there was a protected disclosure, it would then be a matter for that Court to decide the subsequent question of whether the dismissal was wholly or mainly brought about by virtue of the protected disclosure and was accordingly rendered unfair as a result by  reason of the operation of 6(2)(ba) of the 1977 Act (as inserted by s.11(2) of the 1977 Act)."
https://www.courts.ie/view/judgments/0563bc09-2c03-4111-bb36-b640c1c8aef5/4b7cab2e-7e78-48e2-a630-284bf315389a/2021_IESC_77_Hogan%20J.pdf/pdf