Stay ahead of the curve with our exclusive Q&A series, brought to you by leading law firm, A&L Goodbody LLP, designed to answer your most pressing legal questions. These expert insights provide clear guidance to ensure your HR practices remain compliant and protect your organisation.  

In this month's Q&A, Caoimhe Grogan, Associate in A&L Goodbody's Employment Group, provides an update on two related decisions of the Workplace Relations Commission (the WRC) in Fiona O'Neill v Waterford Intellectual Disability Association where significant compensation was awarded under the Protected Disclosures Act 2014 (the 2014 Act). The decisions are a strong reminder that penalisation is not limited to dismissal or formal discipline. Changes to duties or reporting lines, threats, coercive conduct, inappropriate medical referrals and other acts or omissions causing unjustified detriment may fall within the statutory protection and result in significant compensation where established.

What is the whistleblowing (or protected disclosures) regime in Ireland?

Under the 2014 Act, a protected disclosure is defined as a disclosure of information which, in the worker's reasonable belief, tends to show a relevant wrongdoing and comes to the worker's attention in a work-related context. Employers are prohibited from penalising, or threatening to penalise, a worker for making such a disclosure. 

Penalisation is defined broadly as a direct or indirect act or omission in a work-related context that is prompted by a report and causes (or may cause) unjustified detriment. Examples of penalisation include demotion, transfer of duties, coercion, intimidation, harassment, ostracism, threats of reprisal, disadvantage or unfair treatment, harm or loss, and psychiatric or medical referrals. 

What is the background to the case?

The Complainant was appointed as Director of Services (DOS) with the Waterford Intellectual Disability Association (WIDA) in 2013 and operated as the head of the Executive Management Team (the EMT) and performed the functions of CEO. 
The Complainant made several protected disclosures during 2022 and 2023 concerning, among other matters, bullying and harassment, procurement, financial and governance related concerns. The disclosures were made to WIDA, the HSE and the Charities Regulator. The Complainant subsequently brought complaints of penalisation in 2023 (ADJ-00047295) and 2024 (ADJ-00050890). 

The Respondent conceded all allegations made by the Complainant and the Board offered an unequivocal apology. The only matter therefore to be addressed by the WRC was that of the appropriate remedy. 

What happened in the 2023 Complaint?

The 2023 Complaint concerned penalisation occurring in 2022 and 2023 arising out of two internal reports. The first report was prepared by the Chair and the Board regarding a complaint of bullying and harassment by the former HR Manager against the Chair (the First Report). The complaint which was the subject of the First Report did not concern the Complainant, and she was not interviewed or otherwise involved in the investigation process. However, the First Report nonetheless made adverse findings about the Complainant and was shared with HIQA and the HSE by the Chair. 

In 2022, the Complainant made a detailed complaint to the board of bullying and harassment against the Chair and specifically requested that the complaint be treated as a protected disclosure. The Respondent never investigated this complaint.  

In the aftermath of the First Report and the bullying and harassment complaint of the Complainant, WIDA procured the services of a consulting firm to carry out an organisational review (the Second Report). The Second Report had far reaching consequences for the Complainant and led to her effective demotion from her post as the most senior executive officer, with the decision made to establish the role of Chief Executive Officer above her. This was the most significant example of penalisation cited by the Complainant as part of the 2023 Complaint. In addition, the following claims of penalisation were made:

• After the Complainant sought legal advice and raised further procurement concerns regarding the manner in which invoices were to be paid to the consulting firm, the Chair threatened potential disciplinary action against her; 
   
• The Chair directed that the Complainant be referred for medical assessment, even though she was on the first two days of sick leave, which were self-certified in compliance with the applicable WIDA policies; 
   
• The Complainant’s legal correspondence was disclosed without consent and called “rubbish”; and 
   
• The Chair said words to the effect that he would see her out of WIDA.

What happened in the 2024 Complaint?

The 2024 Complaint involved a separate but related complaint of penalisation from January 2024 onwards. On 25 January 2024, the Complainant was told in a brief meeting that an interim CEO would start the following day and would perform some or all of her duties. WIDA also announced plans to recruit a permanent CEO to perform some or all of the Complainant’s role. The Complainant made a complaint contending that this would demote her and undermine her role and functions. Although WIDA said the new role would not replace the DOS role, the proposed structure placed a CEO above the DOS, transferred functions to the interim CEO and changed the Complainant ’s reporting arrangements. 

The Complainant sought undertakings to stop those steps pending resolution of the Complaint, including not proceeding with the recruitment of a CEO, permitting the Complainant to continue performing the full functions of the DOS role and not requiring her to report to the interim CEO. 

The Complainant then made a further complaint to the Board, which she requested be treated as a protected disclosure, concerning the Chair's conduct, including the handling and disclosure of the First Report, instructions arising from the First Report and derogatory comments from the Chair. The Complainant argued that the First and Second Reports were subsequently relied upon to undermine her role, including the proposals to introduce a CEO position above her despite HSE requests that implementation be postponed. 

When the undertakings sought were not initially provided, the Complainant applied to the Circuit Court and obtained interim relief. The Respondent provided undertakings, including not to recruit a CEO, pending full hearing of the injunction. When the matter came on for full hearing the Respondent offered the following undertakings, which remained in place pending resolution of the 2024 Complaint:

• Board not to proceed with recruitment of CEO;
   
• Board to permit Complainant to fully perform all of the functions attaching to her role; 
   
• Complainant not to be required to report to the Interim CEO; and
   
• Complainant’s legal costs to be adjudicated in default of agreement.

What did the WRC decide?

ADJ-00047295 (2023 complaint): The WRC found that the Complainant had made protected disclosures and that WIDA penalised her through the reports and attempted changes to the executive structure. The WRC also found that penalisation occurred through instructions and threats relating to disputed consultancy invoices, the medical referral while she was on self-certified sick leave, the disclosure and dismissal of her legal correspondence, and other conduct that threatened or diminished her position. The complaint was declared well founded.

ADJ-00050890 (2024 complaint): The WRC treated this complaint separately. It found that the January 2024 appointment of an interim CEO, the transfer of the Complainant's duties, and the attempt to recruit a permanent CEO above her role amounted to penalisation. The WRC concluded that these actions constituted a demotion and transfer of duties because she had made protected disclosures. This complaint was also declared well founded.

For each complaint, the WRC required WIDA to take the following specified steps:

• Quash the First and Second Reports;
   
• Cease all existing or proposed steps to place a CEO or other office holder above the DOS in the line of management;
   
• Bring the interim CEO role to an end;
   
• Acknowledge the Complainant as de facto CEO and the most senior executive reporting to the Board; and 
   
• Offer a full and unequivocal apology for the mistreatment she suffered.

The WRC awarded €161,620 in respect of each complaint, amounting to a total compensation of €323,240.
In doing so, the WRC took account of the seriousness of the Complainant’s mistreatment and the stress and expense of the related court proceedings and found that the Complainant had “been treated adversely on the extreme end of the spectrum”. It is notable that, due to the gravity of WIDA’s conduct, their full concession and apology at the hearing itself did not serve to mitigate the level of award of compensation that was ultimately made.

What are the key takeaways for employers?

• The WRC takes the penalisation of whistleblowers very seriously. Penalisation may arise from a series of acts over time and penalisation short of dismissal can occur and will result in significant liabilities for an organisation where established.
   
• Organisational risk for penalisation is not limited to financial exposure. The WRC can also require practical steps to stop or reverse the disputed conduct. 
   
• Protected disclosures must be managed as a governance and employee-relations risk, not simply as a complaint to be investigated. Prudent employers will therefore treat such disclosures seriously, ensure they are investigated in compliance with any applicable protected disclosures policy and take pro-active measures to ensure penalisation does not occur. 
   
• Employers who receive complaints of penalisation from employees would be well advised to immediately act on foot of those complaints, even where those complaints concern alleged wrongdoing by very senior individuals within the organisation. As can be seen, a failure to do so can result in material financial liability but also significant reputational harm, with penalisation claims heard in public before the WRC.  

For further information in relation to this topic, please contact any member of the ALG Employment team.

A&L Goodbody LLP
Telephone: +35316492000 
Website: www.algoodbody.com