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If an employee raises a protected disclosure, they are protected against penalisation under the Protected Disclosures Act 2014, as amended ("the 2014 Act"). However, if the employee subsequently engages in acts of alleged misconduct, employers are generally entitled to follow their internal disciplinary processes, as normal, provided that the reason for invoking the disciplinary process is not penalisation because of the disclosure.
Interim Relief
In a recent case that received some media attention, an employee made protected disclosures to his employer relating to alleged conflict of interest and confidentiality concerns. He also raised concerns over allegedly inadequate nursing staffing levels at some sites on some occasions.
The media reports indicate that the employer subsequently placed the employee on garden leave. As a result, and on foot of an injunction application, the Circuit Court granted an interim order under the Protected Disclosures Act for the employee's immediate reinstatement to his position.
(Media Reports: https://bit.ly/3QFYtPv & https://bit.ly/4klenMA)
Money, Money, Money...
Just days after the Court ordered the employee's reinstatement, and upon his return, his employer suspended him for alleged misconduct.
His employer maintained that the suspension was as a result of inappropriate behaviour in the workplace, including an allegation that the employee showed others messages concerning the ongoing litigation whilst playing the famous Abba song "Money, Money, Money". The media reports suggest that there were also further allegations of “inappropriate” and “intimidating” behaviour. This has been disputed by the employee.
The employer's position was that the suspension was a completely separate matter to the employee's previous protected disclosure. The case has since been compromised the Court has been told.
Practical guidance for employers
The specifics of this case aside and generally speaking, an employer should ensure that any disciplinary action initiated following the raising of a protected disclosure by an employee is clearly documented, is based on actual evidence of alleged misconduct and is not because of the raising of the protected disclosure(s).
Should you or your business require employment law advice, please feel free to reach out to our team members Barry Walsh and Greta Siskauskaite.
The above is for general guidance only and is not intended as professional advice or commentary of the specifics of the case. Advice should always be taken before acting on any of the issues identified.