Background:

The Complainant had been employed by the Respondent, a pharmaceutical manufacturer, since August 2018 as the Respondent’s Pharmacovigilance Manager. This meant the Complainant’s role was to advise the Respondent in the detection, assessment, understanding and prevention of adverse events in the medicines they produced.

The Complainant uncovered a marketing communication issued by the Respondent which was drafted in a way which had the potential to confuse and mislead client pharmacies into believing they were reading patent information materials. This marketing information was formatted and written as though they were patent information material, but excluded some language about patient risk which would have been otherwise required by law. The Complainant raised this to the Respondent, ultimately causing the Respondent to self-refer the matter to the Health Products Regulatory Authority. The HPRA ultimately required the Respondent to recall the communications in question.

The Complainant’s relationship with the Respondent deteriorated over the following years after this disclosure, with the Complainant alleging he was the subject of a campaign of victimisation against him (see the Protected Disclosures decision in this case). In one contentious call with colleagues, the Complainant revealed that he was collecting the Respondent’s data. The Respondent’s IT department then did a review and found that the Complainant was frequently emailing out of the Respondent organisation to several different email addresses. The Respondent suspended the Complainant while a full investigation of these emails was completed.

At the end of this investigation the Respondent discovered that over 850 emails had been sent by the Complainant outside the organisation, including many which were confidential. The Complainant was the subject of a disciplinary process and was dismissed pursuant to these facts. The Complainant alleged this dismissal was penalisation for having made a protected disclosure, and in the alternative, alleged that the dismissal was unfair.

Outcome:

The Adjudication Officer found that the Respondent’s decision to suspend, investigate and ultimately dismiss the Complainant was both procedurally and substantively fair. The Complainant’s emails were not “protected disclosures” as they were communications to himself, and therefore were not protected and could be disciplined on the basis that they were serious breaches of confidentiality and data protection.

Practical Guidance for Employers:

Employers are entitled to restrict employees in emailing business confidential emails to private email addresses, and where such a pattern is detected, employers may take steps up to and including dismissal to discipline such actions.

The full case is here:  https://www.workplacerelations.ie/en/cases/2023/november/adj-00039212.html