Mr Nolan (the Complainant) alleged that a report made to his line manager regarding harassment and intimidation he was subjected to was a protected disclosure under the Protected Disclosure Act 2014 (the 2014 Act) and he suffered penalisation as a result.

What happened?

In 2013, the Appellant was successful in an internal competition for the post of Acting Grade 7. While in this position he was responsible for Traveller housing issues and it is maintained that he had an unblemished work history. However, in 2017/2018, the Appellant reported a number of instances to his line manager in which he claimed to have been subjected to harassment and intimidation from a number of service users in connection with his work role. The Appellant contended that his reporting of these matters constituted a protected disclosure within the meaning of The Protected Disclosures Act 2014 (the "2014 Act").

Accordingly, the Appellant's employer, (the Respondent) transferred him to a different role at a different location, ultimately downgrading the Appellant's position to a Grade 6. The Appellant argued that the Respondent's response to his protected disclosure constituted penalisation within the meaning of the 2014 Act. In July 2019, the matter came before an Adjudication Officer of the WRC. The Appellant's complaint failed as the Adjudication Officer found, in respect of the protected disclosure claim, that the matters reported by the Appellant did not amount to protected acts. Consequently, the question of penalisation under the legislation did not have to be considered.

The Labour Court considered whether the matters raised by the Complainant with his employers constituted a protected disclosure. The Court found that the complaint did not relate to "relevant wrongdoing" as defined by s. 5(3) of the 2014 Act. This conclusion "flowed directly and exclusively" from the Court's interpretation of s. 5(5) of the 2014 Act which provided that a matter was not a relevant wrongdoing if it was the function of the Respondent to investigate the wrongdoing. The Court relied on the fact that both parties had accepted that the wrongdoings complained of were a threat to the health and safety of the Complainant and arose from the position he held within the employer's organisation. Thus, the Labour Court determined that the issues in the present case fell within the parameters of s. 5(5) of the 2014 Act as a matter that the Respondent was required to investigate. Accordingly, the Labour Court found that the complaint did not relate to "relevant wrongdoing".  As a result, the Labour Court concluded that a protected disclosure had not been made.

What did the High Court decide?

The High Court considered whether the Labour Court had erred in law in concluding in reliance on s. 5(5) of the 2014 Act that the complaint made by the Appellant did not constitute a “relevant wrongdoing” within the meaning of s. 5(3) of the 2014 Act. Due to the fact that the Court determined that s. 5(5) of the 2014 Act fell to be narrowly construed, it was satisfied that this provision essentially provided that if it was the worker’s or the employer’s role to detect, investigate or prosecute any wrongdoing and the wrongdoing reported related to a person other than the employer, then it was not a wrongdoing for the purpose of the 2014 Act.   As a result, the Court was satisfied that the Labour Court had erred in construing the words "to detect, investigate or prosecute" widely as embracing general duties on an employer pursuant to an obligation to provide a safe place or safe system of work.  Moreover, the Court held that this language in s. 5(5) indicated either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer. The Court noted that if this was not the case then s. 5(5) would have rendered s. 5(3) entirely devoid of effect as an obligation to investigate wrongdoing in the workplace could have been implied as a general duty of any employer. The Court was of the opinion that this could not have been the statutory intention and that the construction adopted by the Labour Court would have substantially reduced the effectiveness of the 2014 Act.

Accordingly, the Court was of the opinion that the Labour Court had, by interpreting s. 5(5) in such a broad manner, applied this provision on the erroneous basis that it excluded a complaint relating to health and safety which fell to be investigated by an employer. The Court held that this amounted to an error of law that defeated the purposes of s. 5(3) (d), which expressly allowed complaints in relation to the endangerment of the health and safety "of any individual." Consequently, the appeal was allowed and the case was remitted to the Labour Court.

Key takeaway

Employers should always consider whether a complaint constitutes a protected disclosure and be cognisant of the risk of penalisation.

Full case here: https://www.casemine.com/judgement/uk/62323b61b50db9fc0c926483