ADJUDICATION OFFICER DECISION
A health service provider
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
On the 30th October 2018, the complainant submitted a complaint of penalisation pursuant to the Health Act and the Protected Disclosures Act. The complaint was scheduled for adjudication on the 20th December 2018. The complainant attended the adjudication and was represented by the Irish Hospital Consultants Association. Three witnesses attended for the respondent, which was represented by Mason Hayes & Curran Solicitors.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant asserts that he has been penalised for making protected disclosures and the respondent denies the claim.
Summary of Complainant’s Case:
The complainant outlined that he made a protected disclosure on the 2nd March 2016, raising patient care issues involving a colleague, a psychologist. He also made a dignity at work complaint. The psychologist then made a dignity at work complaint against him. The nub of the complainant’s issue was that the respondent was using the dignity at work complaint against him and relying on the information he disclosed in the protected disclosures. There was also a risk of cross contamination between the two processes. The penalisation includes not being treated the same as others.
It was wrong for the respondent to use his protected disclosure as the basis of the bullying complaint against him, in particular the patient care issues he raised. The respondent delayed clarifying the separation between the two investigations. The terms of reference of the investigation into his protected disclosure have not been agreed while the investigation into him was at reporting stage.
The complainant outlined that the penalisation included the delay in initiating an investigation into his protected disclosure. The main issue in the protected disclosure related to patient care. He had no problem with any dignity of work complaint, but the issue is procedural. He had a problem with the timing and the speed the dignity of work complaint proceeded. The respondent should have allowed the first process to finish prior to completing the dignity at work process. The complainant’s main concerns were his good name and the danger of cross-contamination.
The complainant was at a loss at the conflation of his protected disclosure and his dignity at work complaint. The respondent had allowed a retaliatory dignity at work complaint to be addressed without his protected disclosure being addressed. The two dignity at work complaints were dealt with differently. The psychologist’s complaint changed after the telephone call with HR and the historical bits were brought in.
The respondent had found that his dignity at work complaint did not pass the screening process as one document was excluded. The complainant was unhappy with this screening process and the exclusion of the document.
The complainant submitted that the delay in investigating the protected disclosure amounted to penalisation. He submitted that his protected disclosure should be investigated. The dignity at work complaint could then proceed. It was unconscionable to delay the investigation of his protected disclosure. There should be a procedure to exclude the detail of a protected disclosure or delay investigation of a dignity of work complaint to prevent it interfering with the investigation into the protected disclosure.
The complainant said that he ended his employment with the respondent because of a “bigger issue” linked to the work environment and patient care.
Summary of Respondent’s Case:
In outline submissions, the respondent denied that it penalised the complainant for making protected disclosures or that he had suffered any detriment. It also submits that the complaint of penalisation is premature as the process dealing with the protected disclosure was still in being.
The respondent outlined that in March 2016, the complainant submitted a protected disclosure about the clinical practice of a colleague, a clinical psychologist. He also made a dignity at work complaint arising from interactions with this colleague. In May 2016, the clinical psychologist made a dignity at work complaint about the complainant. The complainant made further protected disclosures during 2016.
The respondent outlined that the clinical psychologist resubmitted her dignity at work complaint on the 2nd September 2016. A preliminary screening determined that this should go forward for investigation. This could not be progressed as the complainant would not agree who should investigate the dignity at work complaint, saying that his protected disclosure should be dealt with first. The complainant declined to engage with the process.
The respondent outlined that it also sought to progress its investigation into the complainant’s protected disclosures. The respondent determined that the complainant’s dignity at work complaint did not fall within the dignity at work policy and no further action was required. The respondent decided to deal with the issues raised in the complainant’s dignity at work complaint within the broader protected disclosures investigation. The complainant refused to agree terms of reference into the protected disclosure investigation, delaying the process.
The respondent denies that it penalised the complainant in any way. It submits that the only detriment referred to by the complainant is the respondent’s decision to proceed with the investigation of the dignity at work complaint against him. It submits that this dignity at work complaint is under investigation and it will be for the investigation team to uphold or not the complaint. This will not in any way be coloured or influenced by the fact the complainant has made protected disclosures.
The respondent outlined that it is obliged to investigate all complaints. It would be untenable for an employer to have to suspend an investigation because another employee had made a complaint under the same policy or a parallel one. The respondent progressed both sets of investigations, ensuring that separate teams investigated each. The respondent submitted that the investigation into the complainant’s protected disclosure are underway and this complaint is premature. No adverse findings have been made against the complainant in the dignity at work process.
The respondent outlined that it has sought to agree terms of reference with the complainant regarding the investigation of the protected disclosure. It accepted that this was not required by the respondent Protected Disclosure policy.
The respondent acknowledged that the clinical psychologist’s dignity at work complaint of the 2nd September 2016 include the protected disclosure issues but addresses other issues, arising both before and after the disclosure. The respondent asked how delay in investigating the protected disclosure could penalise the complainant as there is no impact on him. It submitted that far from him being penalised, the complainant was treated more favourably as the respondent sought his approval of the terms of reference, while the respondent proceeded with the investigation into the dignity at work complaint without his approval. Two investigative processes could not proceed at the same pace and the one into the protected disclosure took longer. It was also more favourable to incorporate the dignity at work issue back into the initial protected disclosure after the closing of the screening process. The current dignity at work process excludes the 2011 complaint and apology.
The respondent staff doing the dignity at work assessments did not know of the complainant’s protected disclosures. The respondent sought to keep the investigations separate and the complainant now wanted the respondent to remove these walls. The respondent submitted that an employer proceeding with an investigation cannot amount to penalisation.
Findings and Conclusions:
Protected Disclosures Act v Health Act
Prior to the enactment of the Protected Disclosures Act, the Oireachtas passed several Acts giving protection to staff making protected disclosures within particular sectors, for example healthcare professionals (Health Act 2004, as amended by the Health Act 2007). As set out by the respondent, Schedule 4 of the Protected Disclosures Act has the effect of making a disclosure made under one of the sectoral Acts a disclosure under the Protected Disclosures Act. This is because of the insertion of subsection (1A) into section 55M of the Health Act, so that the provision reads:
“55M (1) An employer shall not penalise an employee for making a protected disclosure.
There are several differences between the protected disclosure provisions in the Protected Disclosures Act and Part 9A of the Health Act 2004. First, there is a “good faith” requirement in the Health Act, so that the employee making the disclosure must do so in “good faith”. There is no such requirement in the Protected Disclosures Act. The definition of “relevant wrongdoings” in the Protected Disclosures Act is broader and, inevitably, more general than the provisions of section 55B and elsewhere in Part 9A. The penalisation provision is more extensive in the Protected Disclosures Act; it protects employees from “unfair treatment” and “discrimination, disadvantage and unfair treatment”, which Part 9A does not include.
I deal with this complaint as one made under the Protected Disclosures Act and have amended this report accordingly. The complainant raises the clinical performance of a colleague, which he says endangers service users. This falls within the ambit of 5(2)(d) of the Protected Disclosures Act: where the “health and safety of any individual has been, is being or is likely to be endangered”. It goes without saying that it is beyond the scope of this adjudication to consider the merits of the protected disclosure, or what the psychologist says in reply.
Protected Disclosures Code of Practice
The Code of Practice on Protected Disclosures (SI 464/2015) recommends that employers have a policy to manage protected disclosures. This should be simple and easy to understand. It should set out a clear “roadmap” for dealing with protected disclosures. The Code provides that a protected disclosure should be acknowledged as quickly as possible. It sets out that it might be appropriate to clarify or seek further information from the person making the disclosure. The Code states “it is important that the worker making the disclosure has a sense that the complaint is being taken seriously and that action is being taken, not least with a view to ensuring that the concerns raised are dealt with internally. The organisation should ensure that as much feedback as possible is given having regard to the sensitivities around, for example, confidentiality. Information in regard to timelines for responses/actions should be communicated to the discloser.”
The Model Whistleblowing policy appended to the Code states “It is important to note that should you have a concern in relation to your own employment or personal circumstances in the workplace it should be dealt with by way of our Grievance Procedure. Likewise concerns arising in regard to workplace relationships should generally be dealt with through our Dignity in the Workplace policy.”
The Model Policy further provides that the employer will “conduct an investigation which will be carried out fairly and objectively. The form and scope of the investigation will depend on the subject matter of the disclosure.” It states “we will inform you of the likely time scales in regard to each of the steps being taken but in any event we commit to dealing with the matters as quickly as possible. It is possible that in the course of the investigation you may be asked to clarify certain matters.”
Respondent Protected Disclosure policy
The respondent’s protected disclosures policy (August 2018) acknowledges the differences between a protected disclosure made pursuant to the Health Act and the Protected Disclosures Act. It encourages workers to make protected disclosures internally and at the earliest possible opportunity. It seeks to ensure that the disclosure is dealt with appropriately. It requires that the relevant information disclosed is sufficiently specific. It states that the worker does not have to carry out an investigation/enquiry to obtain proof of a relevant wrongdoing. The onus on the employee is that they have a reasonable belief that wrongdoing occurred. The policy differentiates between protected disclosures and personal complaints, and the latter should be dealt with via the Grievance or Dignity at Work procedures.
The respondent policy encourages workers to use the Protected Disclosures Reporting Form. It provides that a disclosure will be subject to an initial screening process. This is an assessment of whether it constitutes a protected disclosure. It envisages that it may be necessary to differentiate between elements which are protected disclosures and those which may be personal complaints. The policy states that screening will be completed in an “appropriate and timely” manner. Where it is assessed as a potential protected disclosure, it is referred to a manager for examination or investigation. Clause 13.2 of the policy provides “In general where a protected disclosure is made during an investigation, disciplinary or other HSE process, this should not affect those distinct processes. However, an exception might be made where the worker can demonstrate that the investigation, disciplinary or other action is a form of penalisation for making a protected disclosure.”
The respondent policy refers to the worker being able to request a review of decisions made in the course of this process, for example of “the outcome of any assessment/investigation undertaken.” Any review will be carried out by someone not involved in the investigation. The policy provides that workers may be given periodic and confidential feedback.
Appendix 1 to the policy sets out 14 “general steps” to be completed, including the “initial screening”, referral to an appropriate commissioning manager, “initial examination/assessment” of the disclosure and a possible fuller examination or investigation.
The policy provides that once a disclosure is made, the respondent is tasked with applying the policy to the specific case. Feedback is given to the discloser and there is no onus on the discloser to carry out their own investigation. The discloser can ask for a review of decisions made, for example in relation to the outcome of the investigation. The policy is clear that the discloser is not the prosecutor of the investigation, and the onus lies with the respondent to carry out the initial assessment and any investigation.
Respondent Dignity at Work policy
The respondent dignity at work policy provides that a preliminary screening decides whether it is appropriate to progress the complaint via the policy. The employee is informed of the outcome of the screening process within seven days. Where the complaint proceeds to formal investigation, the person about whom the allegation is made is given the details of the allegation and the right to reply. The policy provides that the investigation will be done by a person acceptable to the parties. The investigator will determine whether the complaint falls within the definition of bullying and whether the offending action amounted to inappropriate behaviour or bullying. The investigator will present preliminary conclusions and invite any person adversely affected to comment on them. Both parties will have two weeks to submit comments on the final investigation report.
The Protected Disclosure Act defines ‘penalisation’ as an act or omission that affects a worker to the worker’s detriment. It follows that the complainant must show that he has incurred detriment. He must, of course, also show the act or event of detriment arose from his protected disclosure (the ‘but for’ test considered below).
In respect of ‘detriment’, it is settled law that detriment does not require some physical or economic consequence. This is clear from the wide variety of forms of penalisation set out in the Protected Disclosure Act, for example the broad “unfair treatment” or things that an employer is ordinarily able to do per the contract of employment, for example “transfer of duties and a change of location or hours of work”.
Shamoon v Chief Constable of the Royal Ulster Constabulary  UKHL 11 related to a police Chief Inspector who claimed detriment when she no longer carried out appraisals of constables in the Urban Traffic branch. She incurred no loss of pay and nor was she demoted. No physical or economic consequence was claimed as detriment. In Shamoon, it was held that the ‘detriment’ must arise in the field of the claimant’s employment. The question was whether a reasonable person in the claimant’s position would regard the act or omission in question as ‘detriment’. It was reaffirmed that an unjustified sense of grievance cannot amount to detriment. The Court concluded that the claimant had carried out some 35 appraisals and the effect of taking away this part of her role “was likely to remove her standing amongst her colleagues.” This constituted detriment. The Labour Court cited Shamoon as authority for the objective definition of ‘detriment’ in An Garda Siochána v Delahunt HSD1311 and Electrical Rewind Service (Limerick) Ltd v Earls HSD 121.
The ‘reason why’ test
A complainant must show that the act or omission causing detriment was ‘but for’ for making of a protected disclosure. In McGrath Partnership v Monaghan PDD162, the Labour Court held “Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” The detriment in McGrath was the employee being placed on paid suspension for five months. In a claim of penalisation, the test is whether the protected disclosure was an operative cause, rather than the operative cause.
Findings in the instant case
It is clear from the evidence in this case that the complainant, a consultant psychiatrist, was concerned about how a colleague, a psychologist, carried out her duties with children and young people accessing the respondent’s services. He raised these detailed concerns in several disclosures. He also submitted a Dignity at Work complaint, which did not progress beyond initial screening. The psychologist submitted a Dignity at Work complaint, which she re-formulated and this was later referred to investigation.
The first issue is that the respondent did not comply with its own policy in handling the complainant’s protected disclosures. It sought to agree terms of reference with the complainant, but this is not a step provided for in the policy. It obviously delayed the progress of the investigation into the protected disclosures. It also changed the complainant’s role from being the discloser, as provided by the policy, to a more involved role, where he should agree terms of reference.
The protected disclosures policy provides a vehicle for employees to share concerns which they reasonably believe relate to wrongdoing. Once they have shared the concern, it falls on the employer to screen/assess/investigate as required. The respondent described seeking the complainant’s agreement of terms of reference as more favourable treatment, but I do not see what he had to gain from this additional involvement. His concern was for the matters he raised to be addressed. Instead, they were not addressed for many months.
The delay contributed to circumstances where contested questions of fact overlap between the complainant’s protected disclosure and the psychologist’s dignity at work complaint. This is at the centre of the claim of penalisation.
This is an unusual case as the alleged acts of penalisation relate to the respondent’s handling of the protected disclosure. As set out above, the complainant emphasised his concern that the substance of his protected disclosure formed the basis of the psychologist’s dignity at work complaint against him. The latter was to be determined prior to the former.
I appreciate that the disclosures raised complex issues to investigate. They relate to actions of colleagues who work in a multidisciplinary context, covering medical, psychology and other services. They relate to actions taken in respect of individual children, for example, as set out in the letter of the 26th May 2016. The psychologist strongly refutes the allegations made against her, describing them as “erroneous” and “inappropriate” criticisms.
A protected disclosure does not give an employee an avenue to hector a colleague or to infringe their dignity at work. The Act, however, protects employees who raise concerns about issues in their workplace. This may include how colleagues carry out their duties. In such a case, a protected disclosure may or may not lead to a finding of wrongdoing against the colleague about whom it is addressed. The protected disclosures policy covers the substance of the alleged wrongdoing; did the alleged action take place and did it amount to wrongdoing. The dignity at work policy considers whether interactions between colleagues were inappropriate.
As discussed at the adjudication, the difficulty in this case is that the dignity at work process proposed to make findings of fact in relation to the content of the protected disclosure. Specifically, this includes whether the complainant’s disclosures were “erroneous”, as stated in the psychologist’s dignity at work complaint. This approach is problematic because findings are to be made on the substance of the issues raised in the protected disclosure. The respondent suggested that it would still be possible for the investigation of the protected disclosure to make contradictory findings. This raises the possible scenario where the psychologist’s dignity at work complaint and the complainant’s protected disclosures are both upheld, i.e. a finding that the complainant’s allegations were “erroneous”, but separately that they were true. An allegation cannot be true and untrue at the same time.
There was no particular difficulty with progressing the dignity at work complaint while the protected disclosure investigation was underway. There was also no difficulty in assessing whether interactions infringed dignity at work, including the tenor of correspondence. The difficulty in this case is that the dignity at work process was to determine whether the substance of the allegations set out in the protected disclosure was true or not. This is problematic as it undermines the treatment and investigation of protected disclosures via the protected disclosure policy.
In assessing the question of detriment, I note the complainant’s position within the respondent. He was a senior clinician, providing psychiatric care to vulnerable children and young people. I cannot comment on the merits of the issues he raises, but it is clear that he had longstanding concerns regarding clinical care, including arising from the psychologist’s work. The complainant raised issues and over the years, they were dealt with by a plethora of respondent staff members. As in Shamoon, the complainant had seniority and it was known throughout the organisation that he had raised issues relating to clinical care. The test for whether an act or omission amounts to detriment is objective. Leaving a protected disclosure in a stalled position for so long and seeking to address key factual conflicts via another process represents detriment to someone of the complainant’s seniority, in circumstances where he has longstanding and widely disseminated concerns.
In respect of penalisation, I note the respondent’s protected disclosures policy and its statutory underpinning in the Code of Practice and the Act. Factual issues arising from a protected disclosure should be determined according to the policy set out for addressing disclosures. In this case, it was unfair to seek to resolve the factual issues raised in the protected disclosure by way of another process, as well as the unfairness of the delay since 2016. It follows that there has been unfair treatment in how the respondent addressed the protected disclosures raised by the complainant. I find that the disclosures were an operative cause for this treatment. Applying the objective test set out above, the complainant incurred detriment in the context of his longstanding issues about clinical practice and patient care, as well as his position of seniority. I, therefore, conclude that the complaint of penalisation is well founded. Of course, this finding does not address the substance of the protected disclosure and nor is it any criticism of the other colleague. This relates to the application of the protected disclosures policy and the requirement that disclosures are assessed in a timely manner and on their own terms.
Schedule 2 of the Protected Disclosures Act provides the following forms of redress:
“1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely —
As redress, I order that the respondent take the following courses of action: that the respondent implement its protected disclosures policy and that the respondent resolves questions of fact raised in the complainant’s disclosure within the protected disclosure process (for example whether the complainant’s allegations were “erroneous”). I award financial compensation to the complainant of €4,000 for the loss and inconvenience incurred.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint of penalisation pursuant to the Protected Disclosures Act is well founded and I order:
· The respondent to implement its protected disclosures policy in addressing the complainant’s protected disclosures;
· The respondent to resolve questions of fact raised in the complainant’s disclosure within the protected disclosure process;
· The respondent to pay to the complainant compensation of €4,000.
Dated: 23rd September 2019
Workplace Relations Commission Adjudication Officer:
Protected Disclosures Act / Health Act
Protected Disclosures Code of Practice
Detriment / unfair treatment / penalisation