A care worker's complaints about fatiguing shift patterns were found to constitute protected acts, and subsequent performance criticism and a letter of concern during probation were deemed penalisation, resulting in a €2,500 award.

The Complainant gave evidence that she had raised concerns in May 2025 regarding an onerous shift pattern that caused fatigue due to extensive driving and client visits. She was assured that the issue would be resolved within a month, but no change occurred, prompting her to raise it again in August 2025. Although she initially received a positive probation review, she was later criticised for alleged performance issues, which she believed were unfounded. She stated that she did not challenge these criticisms due to her probationary status and reliance on a work visa. By September 2025, she experienced stress and high blood pressure, which she reported to management. She claimed she was subjected to increased scrutiny, received a formal letter requiring improvement, and felt anxious and intimidated. She believed that following her complaints, she was treated more harshly than colleagues and that her concerns were only addressed after she initiated proceedings.

The Respondent denied any penalisation and maintained that all actions taken were appropriate and supportive. It stated that the Complainant had agreed to a four-day working pattern at the outset and that any delay in implementing an alternative shift arrangement was due to operational constraints, particularly a shortage of vehicles. The Respondent contended that it had offered practical solutions, including the use of the Complainant’s own car with mileage reimbursement. It maintained that performance concerns raised in June 2025 and subsequently were legitimate and formed part of standard supervisory practice, particularly during probation. The “letter of concern” was described as a supportive intervention rather than disciplinary action. The Respondent rejected the allegation of differential treatment, asserting that all staff were treated consistently. It further submitted that any eventual change to the Complainant’s shift pattern occurred as planned once resources became available and was unrelated to any complaint made.

The Adjudicating Officer found that the Complainant had engaged in protected acts (under Section 27 (3) (c) of the Safety, Health and Welfare at Work Act 2005) by raising health and safety concerns regarding her working conditions. It was accepted that she subsequently experienced detrimental treatment, including reprimands and increased scrutiny during a critical probationary period. While the Respondent characterised these actions as supportive, the Adjudicator considered that the issuing of a letter of concern and the requirement to improve within a short timeframe constituted unnecessary and adverse treatment. Crucially, the Adjudicator determined that a causal link existed between the Complainant’s complaints and the treatment she received, applying the “but for” test. The Respondent failed to provide a satisfactory explanation for the change in treatment, particularly in light of the Complainant’s initially positive performance review. Although the level of detriment was considered relatively minor, the complaint of penalisation was upheld, and compensation of €2,500 was awarded as a just and equitable remedy.

Employers should:

• Recognise that employee complaints relating to health and safety may constitute protected acts under the Safety, Health and Welfare at Work Act 2005. Any subsequent treatment that could be perceived as adverse, including performance management actions, must be carefully justified and clearly documented.

• Note, performance management during probation requires particular care. While employers are entitled to monitor and address performance, such actions must be proportionate, consistent, and supported by objective evidence. Labelling disciplinary or critical interventions as “supportive” will not suffice if the effect on the employee is adverse.

• Realise that operational constraints do not excuse delays in addressing legitimate employee concerns. Employers should manage expectations clearly and provide regular updates where commitments cannot be met. Importantly, once a complaint is made, employers should ensure that no actions taken could reasonably be interpreted as retaliatory.     
  

The full case can be found here.