The plaintiff made an application for an injunction to prevent the Minister for Justice from making a decision as to whether the plaintiff's employment should be terminated following a recommendation made by the Commissioner of An Garda Síochána. While Ní Raifeartaigh J agreed with the High Court decision that the application ought to be dismissed on grounds of delay, the judge took the opportunity to provide useful guidance as to the application of the Protected Disclosures Act 2014 (the 2014 Act) and its interaction with interlocutory relief.

The Judge rejected the appellant’s argument that the principles set out in Roland prevented him from applying for interlocutory relief sooner, noting that applicants are expected to act with expediency in applying for relief, given the inevitability of the defects. Such expediency was not present in this case and in fact, the delay was so blatant that it constituted the sole ground for refusal.

Ní Raifeartaigh J provided useful guidance as to the application of the Protected Disclosures Act 2014 and its interaction with interlocutory relief. The Judge set out a three-part test that an applicant must satisfy in order to benefit from the protections under the Act. Firstly, the communication in question must be shown to constitute a protected disclosure. To do so, the communication must satisfy the following requirements:

(a)    It must disclose some wrongdoing on the part of the employer;
(b)    The complainant must have had a reasonable belief that the employer was engaged in wrongdoing;
(c)    The communication must have some informational content; and
(d)    It must draw the attention of the employer to the information, regardless of their prior awareness of the information.

Importantly, the Judge highlighted that under S5(8) of the 2014 Act, a disclosure is presumed to be a protected disclosure until the contrary is proven. Consequently, each ingredient of a protected disclosure set out above, is presumed to be present until disproved by the respondent, alleviating the burden on the complainant.

Ní Raifeartaigh J added that the communication in question need not relate to some third-party employee and can refer to the treatment suffered by the complainant personally as an employee. Equally, the communication need not be referred to as a protected disclosure under the 2014 Act at the time of communication and can be characterised as such at a later date.

With regards to the second and third limb of the test, the presumption in favour of the applicant does not apply. The applicant is required to show that they suffered penalisation. Penalisation is described, under S3 of the 2014 Act, as “any act or omission that affects a worker to the worker’s detriment,” this explicitly includes the administering of any discipline.

Thirdly, the applicant must show that there exists a connection between the protected disclosure and the penalisation. However, the Judge noted that the requisite strength of such a connection has not been determined in this jurisdiction.

Finally, Ní Raifeartaigh J reasoned that the presumption in favour of a protected disclosure is not confined to the substantive stage of the proceedings. Therefore, an applicant for an interlocutory injunction has the benefit of the statutory presumption in making the application.

• Delay can constitute the primary and even sole ground for refusal of an interlocutory injunction.
  

• This case affirmed the importance of informational content and the complainant’s reasonable belief as elements of assessing whether a communication constitutes a protected disclosure.
  

• The reversal of the burden of proof applies to the interlocutory stage as it would to a substantive hearing.