PDD257

PD/24/13

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045983 (CA-00056870-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 21 May 2024. A Labour Court hearing took place on 6 May 2025. The following is the Decision of the Court.

DECISION:

This is an appeal by Mr Germino (the Complainant) against Decision ADJ-00045983 CA-00056870-001 of an Adjudication Officer under the Protected Disclosures Act, 1991 (the Act) against his employer the HSE (the Respondent).  The Adjudication Officer held that no protected disclosure was made.

1 Background

The Complainant is employed as a CNM2(Site Manager) with the Respondent. The complaint arises following a proposal by the Respondent to reduce the number of site managers present on the night shift from two to one.  The Complainant believed this raised health and safety concerns which he brought to the attention of management. It is his position that he was penalised for raising these issues. The Complainant lodged his complaint with the WRC on 26 May 2023. The reckonable period for the purpose of the Act is 27 November 2022 to 26 May 2023.

2 Summary of Complainant’s submission.

Mr Mc Crave solicitor for the Complainant submitted that the Complainant made protected disclosures on 8 November 2022 and 14 November 2022. On the 13 October 2022 the Complainant was copied in on an email from a colleague that mentioned a plan to have just one site manager on the campus during the night shift. This was the first the Complainant had heard of this proposal. By email of the same date the Complainant raised concerns about the change and noted that site managers had not been consulted. 

On 13 October 2022 Ms Kennedy Director of Nursing (DON) replied to his email and invited him to meet with her to discuss his concerns. The email went on to say consultation had taken place with the other night managers, but he had been on annual leave at the time. She stated that the other night managers did not share his view. The Complainant met with Ms Kennedy on 4 November 2022 and outlined his concerns about the proposed changes. Ms Kennedy suggested that he move to day shift. He informed Ms Kennedy that would result in a drop in income, and he would only move to day shifts if he could protect his current salary. Later that day he received an email from Ms Kennedy stating that he had agreed to move to the dayshift. He responded on the same day clarifying that no move to the day shift had been formally agreed and that if his salary was not protected, he would remain on night shift.

On 7 November 2022, Ms Kennedy emailed him to advise that she was giving him six weeks’ notice of her intention to reassign him to Tory Ward on day shifts, and any issues he had in respect of his salary could be pursued through the internal grievance procedure. On 8 November 2022 the Complainant emailed Ms Kennedy to inform her that he would not be transferring to day shift but would return to night shift, awaiting her full proposal.

 In that email the Complainant highlighted that a risk assessment had been conducted ten years prior which had found that it was not safe to run the entire hospital campus with only one night shift site manager. He also stated that the hospital now had more complex patients. He stated that he would conduct a new risk assessment and review of night duty activities. On 14 November 2022 the Complainant submitted a form titled risk assessment and on it he listed a number of issues.

 It is the Complainant’s submission that this risk assessment along with his email of 8 November both jointly and separately are protected disclosures. On 1 December 2022 the Complainant was working on the night shift in his own section when he received a phone call from the CNM in the other section asking him to receive the handover. The Complainant informed the CNM that he had not agreed to cover the entire hospital campus on his own due to safety concerns. He then received a call from Ms John, Assistant Director of Nursing (ADON) informing him that if he did not cover both areas, he would be removed from night duties.

The following day the Complainant emailed Ms   Kennedy highlighting that he was experiencing a stressful environment and looking for a meeting between himself his union representative and Ms Kennedy. On 8 December he received an invite to attend a meeting the following day at 8.30am. He requested an agenda for the meeting and ultimately asked for it to be rescheduled to allow his union representative to attend. On 9 December 2022 he received a phone call from Ms Kennedy advising that he was being suspended with pay. He was not told why he was being suspended. On 13 December 2022, he received a letter informing him that he was being suspended with pay pending an investigation into a reported dereliction of duty on Tory ward on 8 November 2022 and one other issue.

On 10 January he received a lettering inviting him to a meeting, but his Union objected on the basis the letter did not specify the purpose of the meeting or give any further details in relation to the allegations against him.  The meeting did not proceed.

On 7 February 2023 he received a letter inviting him to a disciplinary hearing on 14 February 2023. The letter stated that the investigation had found numerous breaches of professional behaviour throughout the period 20 September 2022 to 13 December 2022.

 On the 22 February 2023 his Union wrote to Ms Kennedy stating that the approach by management represented a serious breach of the Code of Practice on Disciplinary Procedures 2000. On 2 March 2023 Ms Kennedy wrote to INMO, in this letter she admitted that the process to date had been flawed and invited the Complainant to return to work immediately. The letter went on to say that she would meet with the Complainant to discuss the concerns previously advised to the Complainant but that it would not be held under the Disciplinary Procedure.

The Complainant commenced certified sick leave on 3 March 2023.  On 19 May 2023 through his solicitors the Complainant raised a formal grievance. The Complainant lodged his complaint with the WRC on 26 May 2023.

Mr Mc Crave submitted that the Complainants disclosures clearly fall under section 5 (3) (d) and related to a relevant wrongdoing for the purpose of the Act. He opened the following cases to the Court Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, which held that the disclosure must be off “sufficient factual context and specificity such as is capable of tending to show one of the matters listed in the subsection”. Baranya v Rosderra Irish Meats [2021] IESC 77 where the Supreme Court held that so long as the disclosure contains information tending to show a relevant wrongdoing, ‘however basic, pithy or concise’ it will be sufficient to constitute a protected disclosure, the Supreme Court went on to emphasise that the Act does not distinguish between a personal grievance and a protected disclosure. In Barrett v Commissioner for An Garda Siochana and Minister for Justice [2022] IEHC 86 the High Court held that there is no absolute requirement to invoke the language of the Act.   The Complainant disclosed his belief that the proposal to have a single site manager on the night shift posed a danger to the health and safety of both staff members and patients. The Complainant identified the issues based on his experience in the job. Following his protected disclosures the Complainant was penalised by being subjected to an unfair and flawed investigation and disciplinary procedure and being suspended from work contrary to the Act.

3 Summary of Respondent’s submission

Ms Ennis BL on behalf of the Respondent denied that the Complainant had made any protected disclosure as defined by the Act. It was further denied that he was penalised for making a protected disclosure. It is the Respondent’s case that the Complainant never made a disclosure of informational content within the definition set out in the Act.  Instead, he raised issues of an industrial relations nature concerning his own particular employment circumstances in response to operational changes being implemented that he did not agree with.

 Ms Ennis BL submitted that in respect of the alleged penalisation, the disciplinary process was commenced on the basis of reports received regarding the Complainant’s conduct. It was subsequently terminated as the process was flawed but the Respondent indicated that they still wanted to talk to the Complainant about his conduct but not as part of a disciplinary procedure. This was entirely unrelated to the Complainant’s opposition to the operational changes.

 In terms of the documents the Complainant is seeking to rely on as protected disclosures they do not contain relevant information arising from a reasonable belief. Unsubstantiated statements and speculative beliefs cannot constitute a protected disclosure. In terms of a relevant wrongdoing the information must show that health has been affected, is being affected or is likely to be endangered. He is not claiming that health and safety of staff or patients had been or was being endangered, and he failed to show that it was likely to be endangered by the proposed change of reducing from two to one night shift manager on site.  The emails he is seeking to rely on do not contain enough factual information to meet the requirements of the legislation.

The Complainant objected to the operational change by email of 13 October 2022. The then DON Ms Kennedy sought to meet with the Complainant to discuss the change and his objection to it. After several attempts to meet he ultimately made himself available on 4 November 2022. At that meeting, in light of his objection to the proposed change, he was offered a move from night shift to day shift.  It is the Respondents case that at that meeting he agreed to change to day shift and that after the meeting he immediately reported to the day ward he was assigned to. He also changed his roster for the following three weeks from night shifts to day shifts. It is not disputed that he indicated he wanted to retain his night shift rate of pay and the DON confirmed that she would support his request for a pay differential consideration.

Having started on day shifts on 4 November 2022 the Complainant subsequently declared he was returning to night shifts on the basis that the DON was not guaranteeing his night shift salary. By email of 7 November 2022 the DON informed the Complainant that she was giving him six weeks’ notice of his transfer to day shifts. On 8 November when he was rostered to workday shift 7.30am to 8.30pm two reports were received from staff to the effect that he had walked off his shift at approximately 11.00 am. The Complainant never denied these reports. On 8 November 2022 prior to walking off his shift the Complainant had sent an email to the DON which he is now seeking to rely on as a protected disclosure. The email indicated that he was returning to night shift but did not say he was walking off and not completing his day shift. By email of 14 November 2022 the Complainant submitted what he claimed was a risk assessment that he had completed in respect of the proposal to reduce the night managers from one to two and has identified this also as a protected disclosure. 

On 1 December 2022 while the Complainant was rostered to work night shift, he refused to take handover from the day shift working in the other unit. In response to reports she had received about the Complainant, the DON on 9 December 2022 suspended him. 

Following objections from the Complainant’s Union the disciplinary procedure was set aside as it was accepted that the process was flawed. The Complainant was invited back to work and to discuss the complaints the DON had received but not as a disciplinary matter.

The Complainant has been on sick leave since his suspension was lifted on 2 March 2022. The Complainant has indicated that he is relying on the relevant wrongdoing set out at s.5 (3)(d) and states “that the health or safety of any individual has been, is being or is likely to be endangered.”Barrett v Commissioner of An Garda Siochana [2023] IECA 122 sets out 10 main points to consider in order to establish if a protected disclosure has been made and in Baranya v Rosderra Irish Meats [2022] ELR 73 Hogan J of the Supreme Court stated

 “In essence, therefore, the issue for the Labour Court was first to ask what precisely did Mr Baranya say and , second, to inquire whether, having regard to the general context of the words actually uttered, they amounted to an allegation of ‘wrongdoing’ in the sense both s.5(2) and s.5(3) (d) of the 2014 Act .i.e., did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must of course, contain such information- however basic, pithy or concise- which, to use the language of s.5 (2) of the 2014 Act, ‘tends to show one or more relevant wrongdoings ‘on the part of the employer”.   

In Barrett the Court of Appeal drew a distinction between seeking information and expressing opinions on the one hand and providing information so as to come within the definition of a protected disclosure. It is clear therefore that the disclosure in question must contain information of sufficient factual content and specificity tending to show some relevant wrongdoing on the part of the employer. In his email of 8 November 2022, the Complainant referenced a report which is alleged to have stated some 10 years earlier, that it was not safe to have one night manager on site. The Complainant accepts he has never seen or read that report but was relying on what he said other people had told him. In terms of the reference in his email to five directors agreeing with this report, he accepts that he never spoke to these directors, nor did they relay this information to him, again he stated that he heard it from other staff. These statements in his email are not underpinned by any factual information.  The Complainant also asked the question “How will it be safe for one supervisor at night”. The Complainant did not identify any specific safety risk or concern nor provide any information content in respect of a relevant wrongdoing. This email therefore cannot be  a protected disclosure within the meaning of s.5 of the Act.

On the 14 November 2022 the Complainant sent an email to the DON stating risk assessment as requested. However, although the document he submitted is a template risk assessment it does not identify, or risk assess any risks. It contains a list of 12 potential hazards but does not assess them in the manner that would normally be associated with a risk assessment. The Respondent has a risk assessment tool that is available to staff to carry out risk assessment, so he had the tools available to him, to do a proper risk assessment. The document submitted on 14 November 2022 did not convey any informational content in respect of a relevant wrongdoing and could not be considered to be a protected disclosure.

The suspension and invocation of the disciplinary procedure arose from the complaints the Respondent had received about the Complainant walking off his shift and on a separate occasion refusing to take a hand over. It was accepted that the process followed was flawed and the process was set aside. There was no link between this process and his emails of 8 and 14 November 2022.

Ms Ennis BL submitted that the Complainant has not established that he made a protected disclosure as defined by the Act nor has he established that he had a reasonable belief that the Health and Safety of an individual was likely to be in danger. He had the opportunity to carry out a risk assessment, but he did not complete same only listing potential hazards but not rating the risk.   The Complainant’s primary concern was to protect his night pay while working days. It is the Respondent’s case that the Complainant has not met the test provided for in the legislation and case law, for a protected disclosure.       

4 Summary of Complainant’s evidence

 The Complainant set out for the Court his job description and responsibilities and the fact that he was working nights since 2016. It was his evidence that he first learnt about the proposal to reduce managers on the night shift to one from an email from another member of staff on 13 October 2022. He continued to work nights but needed to know his liability if he was the only manager on the shift. It was his evidence that he never had a meeting with the DON about the proposed change, he did raise the issue with his Union who said they needed to arrange a meeting, and he continued to work the night shift.

On 4 November 2022 he sent an email and had a chat with the DON who promised him he would keep his salary if he agreed to go on days. His concern was about being a lone Worker on the night shift. It was his understanding that there was no consultation with the Union. He stated he was looking for a meeting to understand what his job description and responsibilities would be. It was his evidence that his email of 8 November 2022 was his protected disclosure, and that he had offered to do a risk assessment on the activities they were doing at night and give it to the DON.

The Complainant stated that he completed the risk assessment form on 14 November 2022. In completing the form, he wrote down a list of issues that he had heard about that had happened in the hospital since he started working there in 2008. One example of something that happened on the night shift since he went on nights in 2016 was during the night a unit was flooded as a roof collapsed and all patients had to be moved. The Complainant accepted that the risk assessment form he sent to Ms Kennedy was incomplete. He sent that form to more than 10 people including other CNM2’s but did not get any responses. On 9 December 2022 the Complainant got a call saying he was suspended with pay. He requested that it be put in writing.  The Complainant received a letter on 13 December 2022 stating he had left his shift on 8 November 2022. It was his evidence that on that day he had reported for duty, had a headache and went home but informed his line manager that he was leaving. On 11 November he received a call asking him why he was not on duty and Ms Kennedy raised the issue about the absence on 8 November 2022.  He only became aware at a later date that the ADON was stating that he did not agree that he could go home. The Complainant stated that he did not know how long between his last night shift and his first day shift. He believed he had resolved the issues relating to 8 November 2022 as he had emailed the CNM2 and the staff nurse.

 The proposed meeting set out in letter of 10 January 2023 was never held. Neither did the meeting referenced in letter of 7 February 2023 go ahead.  He was not aware of the alleged breaches set out in the letter of 7 February 2023 as they had never been raised him.

 His Union the INMO by letter of 22 February 2023 highlighted numerous flaws with the process the Respondent had engaged in respect to suspending him and proposing to discipline him. By letter of 2 March 2023 from the DON his suspension and the disciplinary process were withdrawn.  It was the Complainant’s evidence that the impact of the suspension on him was that he had to speak to his GP and Occupational Health.

Under cross examination by Ms Ennis BL the Complainant accepted that his email of 14 November 2022 contained a list of issues but did not identify any health and safety risks.   He accepted that he had not assessed and or rated the list of issues although the form he completed provided for that to be done. In respect of an email of 13 October 2022 he could not recall if as requested he had provided details of activity levels for shift managers on the night shift. He confirmed that he had a chat with Ms Kennedy in her office on 4 November 2022. He accepted that he had agreed to go on days because he did not want to implement the change on the night duty shift but that he wanted his night shift salary protected. He accepted that the email of 4 November 2022 made no mention of health and safety risks. He confirmed that he went to work on 8 November 2022 on the day shift and only saw the email of 7 November at that stage.  He accepted that he never saw or read the risk assessment he referenced in his email of 4 November 2022 and accepted that he did not know what was in that risk assessment. He also accepted that the risk assessment form that he filled in did not identify a specific concern about what might happen. He confirmed that he was aware of the Respondent’s risk assessment tool but did not read it before he filled out the risk assessment form. When asked if he had carried out any research in terms of data or statistics when drawing up his list of issues, the Complainant stated that he had googled it generally but had not done any research specific to his workplace. 

In respect of having only one night manager on a shift it was his evidence that he was not aware of any other hospital where this happened, and he was unaware that it had been implemented by the Respondent since 2022.  He accepted that the only proposed reduction in staffing was reducing the number of night managers from two to one and that there would still be other staff on the shifts so it would not be lone working.

In respect of the disciplinary process, he accepted that if the Respondent received an incident report, they were obliged investigate it, and that a staff member walking off a shift could be a health and safety issue and required investigation. The Complainant stated that on 8 November 2022 he started his day shift at 7.30am and sent the email at 9.31am. he accepted that in the email he did not mention that he was feeling unwell. He left the shift at 11.00am and told the ADON that he was feeling unwell. He stated that he got more stressed as he read the email of 7 November 2022 from the DON.

In respect of the incident on 1 December 2022 he confirmed that he did not accept the handover from another member of staff and that this could have been a health a safety issue. It was put to him that the handover issue and the walking off the shift were the issues that led to the disciplinary process, but he did not accept that. He did however accept that they were both issues that the Respondent would have to investigate.

5 Summary of Respondent’s witness evidence.

Ms Gourley told the Court that she is currently Director of Nursing (DON) for older people. She outlined the configuration of the hospital and the breakdown between short stay, long stay, and rehabilitation beds. It was her evidence that the role of site manager before and after October 2022 was to be a point of contact if there are issues on site in respect of water, electricity, bleeps, contractors etc.  It was her evidence that Nurses can do IV’s and give antibiotics on short stay. These issues are not really common on the long stay community unit. If Nurses on the night shift needed advice, they would contact the Person in Charge (PIC) who were ADON’s or the Director of Nursing if required.  Clinical decisions are made by Nurses and or the Person in Charge. A number of hospitals already had the proposed model of one shift manager on night shift in place and they were similar in size to the Respondent. In respect of the issues listed by the Complainant in the risk assessment form of 14 November 2022, it was her evidence that these are issues that can happen in the normal day to day running of a hospital.

In response to a question under cross examination from Mr Mc Grave the witness stated that she was not aware of what if any assessment took place prior to 2022. The form submitted by the Complainant was not completed to a standard that was acceptable as a risk assessment. The issues identified were not particular to the areas in the Respondent’s hospital or the night shift.

6 The applicable law

Section 5 of the Act defines a Protected disclosure as

5. (1) For the purposes of this Act “protected disclosure” means, subject to F11[subsection (6)]and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, F12[7B,] 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker F13[in a work-related context].

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross F14[mismanagement,]

F15[(h) that a breach has occurred, is occurring or is likely to occur, or]

F16[(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.]

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

F17[(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.]

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) F18[The motivation] for making a disclosure is irrelevant to whether or not it is a protected disclosure.

F19[(7A) F20[…]]

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

Section 12 Penalisation

S 12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2shall have effect in relation to an alleged contravention of subsection (1) .

(4) Subsection (3) does not apply in relation to the penalisation of an employee if the employee is within paragraph (d) of section 2(1) of the Unfair Dismissals Act 1977.

(5) Any person who, on examination authorised under paragraph 3(1) of Schedule 2, wilfully makes any material statement which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(6) ………

7 Discussion

The first issue the Court has to consider is whether or not there was a protected disclosure. The Complainant’s position is that he made protected disclosures on 8 November 2022 and 14 November 2022.

 The Act sets out that a protected disclosure means a disclosure of relevant information and relevant information is defined as showing one or more relevant wrongdoing. The Complainant has submitted that his protected disclosure falls under s 5 (3) (d) “that the health or safety of any individual has been, is being or is likely to be endangered” He accepted in his evidence to the Court, that he was not saying that the health or safety of any individual had been or is being endangered he is relying solely on ‘is likely to be’ endangered. Both parties agreed that the relevant part of the email of 8 November 2022 is as follows

“ I wish to inform you that a risk Assessment was done more than ten years ago that it is not safe to run the whole Hospital with One night Site Manager this has been accepted by at least 5 permanent high Calibre Director of Nursing. More than 15 years ago the hospital at Nights was managed by ADON and one senior SN. Now that we are more complex, more rehabilitation patients and all of them are for resuscitation. How will it be safe for one supervisor at night.”

The Complainant in his evidence confirmed that he had never read or seen the report he was referencing and that in fact he did not know what it contained. He stated that he was relying on what he had been told by other members of staff. He confirmed that the person  he got the information from was not present in Court to give sworn evidence. He also confirmed that he had never spoken to the five Directors that he referenced in the email and again was relying on what he had been told by other staff members.  There was no evidence before the Court to show that a report as referenced by him did exist and did say what he alleged it said, nor was there any evidence before the Court in respect of what the Directors are alleged to have said.  It appears to the Court that the Complainant emails of 8 November 2022 does not contain any factual information tending to show that the health and safety of an individual is likely to be endangered. The contents of the email are mere unsupported assertions based on hearsay, that does not identify any wrongdoing on the part of the Respondent. Mere assertions cannot be elevated to the level of being relevant information. The second and linked protected disclosure that the Complainant is relying on is his email of 14 November 2020   and the document attached to it which is titled Health and Safety Risk Assessment Form. The front page of the form gives guidelines to completing the form including the following statement “All risk assessments must be in writing and the necessary control measures to eliminate or minimise the risks documented and implemented.” It goes on to say, “when conducting risk assessments consideration should be paid to the risk presented and the means of avoiding and mitigating any such risk so far as is reasonably practicable”. The final page of the document requires that the initial risk is rated under the headings Likelihood, Impact and Initial risk rating and under Risk status is indicated as open, monitor or closed. The Complainant is his sworn evidence confirmed that the list of issues he had set out in the column Hazard and Risk description were things that had happened in the hospital since he started working in 2008 and that he had not identified any wrongdoing by the Respondent. He also confirmed that he had not completed the form and had not caried out risk assessment in respect of each of these items, or identified the likelihood of these issues occurring, or the impact if any such an occurrence would have. He also accepted that the issues identified were not solely linked to night duty or the reduction of night managers from two to one.  The Complainant accepted that in the form he did not identify that any of the issues were likely to endanger the Health and Safety of an individual or individuals. Ms Gourley DON in her evidence stated that the issues he listed were things that can happen on a normal day in a hospital and the form he had submitted was incomplete and would not be considered to be a risk assessment. Similar to the email of 8 November 2022 the email of 14 November 2022 and the document attached to it does not contain any factual information tending to show that the health and safety of an individual is likely to be endangered or disclosing some wrong doing on the part of the Respondent.

 Both parties in their submissions to the Court sought to rely on Baranya v Rosderra Irish Meats [2022] ELR 73 and Barrett v Commissioner of An Garda Siochana [2023] IECA 122.   The Court of Appeal in the Barrett  case set out the following short summary of main points to be considered.    

(i) The communication must disclose some wrongdoing on the part of the employer;

(s. 5 of the 2014 Act);

(ii) The complainant must have had a reasonable belief that the employer was engaged

in wrongdoing (s. 5 of the Act): as always, the term “reasonable” connotes an

objective standard;

(iii) The communication must have some informational content; (s. 5, Baranya; CGI

(iv) Even if the employer is already aware of the information in question, the

communication may still be considered a protected disclosure if it is drawing the

employer’s attention to the information; (s. 3(1) of the Act)

(v) The fact that a communication concerns the treatment of the employee who is

making the complaint (and not, for example, another employee) does not prevent

the communication being a protected disclosure; (Baranya)

(vi) The fact that the 2014 Act was not expressly invoked at the time of the making of

the communication is not an absolute bar to the communication being deemed a

protected disclosure after the event; (CGI)

(vii) What is prohibited by the Act is the penalisation of an employee as a result of

having made a protected disclosure; (s. 5 of the Act)

(viii) Penalisation means any act or omission that affects a worker to the worker’s

detriment and includes disciplining the worker; (s. 5 of the Act)

(ix) There must be a connection between the communication and the event or treatment

said to constitute the penalisation (implicit in s. 5 of the Act; discussed in CGI

decision); the precise formulation of a test in this regard remains to be definitively

determined by an Irish court following full legal argument on the point;

(x) A court should be alive both to the possibility that actions by the employer which

ostensibly appear legitimate on their face may in reality be connected to a protected

disclosure, and the possibility that an employer is taking bona fide steps in respect

of an employee who is making unfounded allegations of a connection between the

two events.

Points i to iii above set out that the communication must disclose some wrongdoing, it must have been the reasonable belief that the employer was engaged in wrongdoing and must have some informational content. The communications being relied on by the Complainant did not disclose any wrongdoing by the Respondent and the Complainant accepted this. It therefore could not have been his reasonable belief that the employer was engaged in wrongdoing. Finally, as set out above the communications sent in by the Complainant did not have information content rather, they sought to rely on mere assertions.

Having considered all of the above the Court concludes that the Complainant did not make a protected disclosure. In coming to that conclusion, the Court took cognisance of the parties’ submissions, the evidence before the Court, the requirements of the Act and the caselaw opened to the Court. Having come to that conclusion, the Court needs go no further in its consideration.

8 Decision

 The Court having decided that the Complainant did not make a protected disclosure as defined by the Act does not uphold his appeal.

 The Appeal fails. The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
28th May 2025	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.