Complainant

Respondent

Parties

Siobhan  O’Sullivan

Health Service Executive

Representatives

Niamh McGovern BL instructed by Comyn Kelleher Tobin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00057540-001

05/07/2023

The Complainant is employed with the Respondent as a General Manager with the Respondent. She commenced employment in August 1980 and has been promoted several times. She gave her evidence on affirmation. It was her complaint that as a result of raising protected disclosures she was subjected to penalisation by the Respondent.

Mr Des Mulligan, Head of Older Persons Services, gave evidence on affirmation as did Ms Breda Cregan Roche, now retired Chief Officer with the Respondent. At the outset the Respondent accepted that protected disclosures were raised but denied in full that the Complainant was penalised by the Respondent.

Submissions and documentary evidence were relied upon by both parties throughout the hearing dates.

It was the Complainant’s evidence that she had made three protected disclosures, initially raised on 31 January 2022, 14 February 2022 and 29 July 2022, and later formally submitted to the HSE Protected Disclosures Office (“HSE PDO”) on 3 February 2023 and 19 April 2023, and that during the period in which she made these disclosures she was subjected to a pattern of adverse recruitment outcomes which she believed amounted to penalisation.

It was the Complainant’s submission that although she was qualified and had been panelled in earlier competitions, she was repeatedly deemed not qualified for senior posts in 2022 despite her extensive experience, including in the General Manager competitions of March and June 2022 and the re‑run competition issued on 8 November 2022. It was her evidence that procedural irregularities such as inconsistent competency assessments, non‑responsiveness to informal enquiries, last‑minute cancellations, and the repeated involvement of the same senior individuals on interview boards undermined its fairness.

The Complainant outlined in evidence her successful appeal of the June 2022 interview, which resulted in the only known re‑run of a competition out of 1,570 held in 2022, demonstrated serious defects in process, and she argued that the statistical probability of such a re‑run occurring in respect of an employee who had made protected disclosures was extremely low and indicative of detriment. She further asserted that conflicts of interest arose due to the continued participation of two Assistant National Directors who, she stated, “worked as one” in her interview processes, and that the interview procedures applied were inconsistent with HSE standards.

The Complainant submitted that the cumulative impact of these events, together with the rejection of her appeal of the November 2022 competition on technical grounds, reflected an absence of independence in the process and constituted unfair and detrimental treatment linked to her having made protected disclosures

She stated that she was repeatedly deemed not qualified by senior managers whom she believed were aware of her disclosures, yet was inconsistently panelled for a higher‑graded Assistant National Director post shortly after being rejected for two General Manager roles, and that she was subsequently excluded from consideration for Head of Service posts she had long acted in. She maintained that the cumulative pattern of inconsistent assessments, diminished support from senior management, and adverse outcomes during and after her disclosures amounted to detriment and constituted penalisation.

It was the Complainant’s evidence that shortly after making her protected disclosures she experienced further detriments in the form of changes to her duties, adverse treatment, and actions which she believed were designed to intimidate or undermine her. She stated that two working days after raising a disclosure in May 2022, half of her General Manager duties were permanently removed, despite that reduction having previously been described as temporary and based on her good performance during the pandemic.

She stated was later asked by a senior manager in August 2022 to delete an email containing information she believed was central to matters she had raised, which she described as coercive and intended to suppress evidence.

She submitted that in May 2023 the newly appointed Head of Service criticised her for raising issues, which she understood as confirmation that the detriment she was experiencing was linked to her disclosures. She further stated that she was not considered for Head of Service roles for which she believed she was qualified and had long acted, while less experienced candidates progressed. It was her further evidence that Mr Gloster, Chief Executive Officer, was in attendance at an event in Tuam in May 2023 when she was ostracised and publicly humiliated by the Chief Officer. She asserted that these events, coupled with repeated failures to be appointed to roles commensurate with her experience and a pattern of managerial distancing, exclusion, and negative treatment from March 2022 onward, amounted to retaliation and penalisation for having made protected disclosures.

At the outset of cross‑examination, the Complainant confirmed that she had initially made her protected disclosures to the HSE in early 2022, and that while they were acknowledged, she believed they were not acted upon until she formally raised them and they were later accepted in June 2023. Counsel for the Respondent put it to her that the focus of the case concerned alleged penalisation arising after November 2022, when she applied for the senior role. She accepted that it was a senior, executive‑level post and that her claim of penalisation centred on her not being placed on the panel following the February 2023 interview.

The Complainant accepted she had participated in numerous interviews over the course of her career and that they were competency‑based, with six competency headings. She acknowledged that in her own evidence she had stated she normally performed strongly across these competencies, but in this instance, she was unsuccessful in the “Professional Knowledge and Experience” competency. When asked whether it was correct that she had not met the required competency threshold, she accepted this but indicated she believed there were broader issues affecting the process.

She was asked about the February 2023 interview and whether she was alleging a lack of independence in the process. She stated her concerns were based on the job description and her belief that the appeals mechanism did not examine the appropriateness of the interview questions themselves. Counsel put it to her that Ms Cregan Roche had extensive interview experience and that the interview was conducted in line with national codes of practice; the Complainant accepted she had received interview training but maintained reservations about the fairness of the process. She accepted that every candidate’s interview was delayed by three weeks but stated as a fact it was relevant. The Complainant challenged the Respondent’s competency-based interview process, arguing that professional knowledge and competency were distinct and that her expertise should have been reflected outside the narrow scoring structure. She disputed the Respondent’s position that achieving the required score was the definitive measure of suitability, asserting that professional skills could be demonstrated throughout the interview and not solely through competency examples.

She further challenged the fairness of the interview panel, suggesting that the Chair lacked independence and may have been influenced by HR or by a desire to remain “on the right side” of the organisation. She cited previous appeals in which she believed independence issues were upheld, arguing that her own appeal demonstrated systemic problems. She maintained that the interview mechanism could be manipulated and claimed this had happened in her case, especially as she had made a protected disclosure.

The Complainant also questioned discrepancies in her scoring, asserting that she had scored highly in previous interviews for similar roles and that it was inconsistent for her to have failed only one competency when she succeeded in all others. She contended that had she achieved even a marginal increase, such as an additional 10%, she would have qualified for the panel and potentially been appointed.

The Complainant recalled the timeline of her protected disclosure, stating she had raised concerns as early as 31 January 2022 and followed up by email and phone, and she questioned why this did not appear to have been acknowledged formally by management.  It was put to her if it was her point that one year later, Ms Cregan Roche penalised her by giving her a score of 35% in her interview, to which she replied, no.

The Complainant maintained that her relationship with Ms Cregan Roche deteriorated after she made her protected disclosure, despite Ms Cregan Roche’s evidence to the contrary. She relied on email exchanges and text messages, asserting that the shift in tone reflected a changed attitude following the disclosure.

The Complainant was questioned about the Tuam event involving Mr Glouster. She stated that she believed she had been sidelined, that others commented on how she was spoken to, and that she had expected her role and prior involvement in Tuam to be acknowledged. It was her evidence that certain questions put to a colleague at the event showed improper signalling to senior management about her own position.

She was asked about her emails of May 2023, particularly correspondence to Estates and the copying of senior managers. She suggested these communications demonstrated an emerging pattern of concern regarding how her disclosure was being handled. She stated that Mr Mulligan’s later email responses, especially those issued close together on 24 May 2023 left her feeling “shocked” and that they reflected a dismissive or hostile attitude which she attributed to her having made a protected disclosure.

The Complainant asserted that Mr Mulligan had been “briefed” about her protected disclosure before he met her, relying on comments she interpreted as suggesting he viewed her as “trouble.” She claimed this influenced the manner in which he interacted with her, including his tone and his approach to staff below her.

She denied causing any difficulty but said she raised legitimate concerns that were not acted upon. She maintained that once she had made the protected disclosure, her interactions with management changed, and she viewed Mr Mulligan’s conduct including emails, meeting arrangements and comments, as connected to her disclosure and not simply operational matters.

The Complainant did not accept that Mr Mulligan had no difficult with her raising issues of concerns. She was asked if she took the email of 19 May 2023 as evidence of Mr Mulligan’s knowledge of the protected disclosure. In response, the Complainant stated that neither the email of 19 May nor the meeting of 23 May 2023 was his “normal behaviour”.

It was put to her that in order to succeed in a claim for penalisation, the individual must have been on notice or aware of the existence of a protected disclosure. The Complainant stated that they were disclosures that ultimately became protected disclosures due to inaction.

Preliminary Matter

A preliminary objection was raised in relation to this complaint, the Respondent would highlight that as the complaint herein was referred to the Workplace Relations Commission on 5 July 2023, the cognisable period for consideration of any alleged contravention is the 6 month period beginning on 6 January 2023 and ending on 5 July 2023.

Any alleged contraventions of the Protected Disclosures Act 2014 occurring outside of this period are not matters which the Workplace Relations Commission has jurisdiction to consider or determine. The Respondent relied upon PDD222 – Aldi Stores (Ireland) Ltd. V Suleman Kayani and PDD203 & PD204 – Minister for Jobs Enterprise & Innovation v. George McLoughlin

Substantive Matter

Ms Cregan Roche outlined her career background and experience in competency‑based recruitment. It was her evidence that senior posts are assessed strictly on interview performance and the examples provided on the day.  She said panel members must independently satisfy themselves about a candidate’s competence and denied any predetermined outcome.  She described the process as structured and standardised and maintained that the Complainant’s interview was scored fairly in line with the competency framework.  She expressed surprise at aspects of the Complainant’s account but confirmed decisions were based solely on the interview evidence presented.

The witness accepted that the Complainant made a protected disclosure but stated it had no influence on her treatment or on the later interview process.

In relation to the protected disclosure regarding pay scales, she accepted the Complainant came to her with very detailed information. She said the disclosure was discussed appropriately at senior level before referring it to the national level team. She did not view the disclosure as a burden where it could cause reputational damage.

She denied any penalisation, including at interview a year later, and said decisions were based solely on competency‑based assessment and the answers given on the day.

She described relying on the Complainant and continued to engage with her.

The witness gave evidence that she was interviewed during the appeal process and presented evidence of her training and recollection of the interview.

It was her evidence that the two candidates panelled, demonstrated their experience and performed at the interview. She accepted Mr Mulligan was panelled No. 2 and accepted the role after No. 1 accepted another role.

The witness gave evidence of the handover to Mr Mulligan which included a “very formal due diligence document” but denied it contained any individual issues. She accepted it was another colleague who carried out the handover meeting. She denied informing Mr Mulligan about the Complainant’s protected disclosures, stating that she focused solely on operational matters. It was her evidence that there was a one‑month overlap with Mr Mulligan before she went on leave on 15 June 2023.

The Complainant cross examined the witness on the interview process and the marks awarded. The witness stated that the Chair’s role was to ensure that questions were fair, to manage timing, and to maintain notes.

The Complainant questioned the witness’s career experience, particularly regarding CPSA procedures and her time in a non-statutory organisation, suggesting that such an organisation was not obliged to follow CPSA. Ms Cregan Roche stated that she remained a public servant during that period and would have applied best‑practice standards to interview panels.

The witness was asked whether legal issues or an organisational chart formed part of the handover to Mr Mulligan, to which she replied, no. The Complainant referred to an email from October 2022 in which the witness advised that their colleague, Ms Glynn, would keep the Complainant apprised of matters relating to the protected disclosure. This was the same Ms Glynn who later met with Mr Mulligan. The witness stated she did not know whether this was included in the handover due diligence documentation.

The witness said it was not in her nature to gossip when asked if there had been gossiping with Mr Mulligan about the protected disclosure.

The witness was asked if she was aware the Complainant knew Mr Glouster well, to which she replied, “you made no secret of it”. She described the event at the Tuam unit opening as busy, with several people present, and stated she did not recall seeing the Complainant draw Mr Glouster over to speak with her. She said there were more than four or five people in the room and she could not recall whether she approached or failed to approach the Complainant. When asked about Ms Cotter’s role at the event, she explained that Ms Cotter was involved in delayed transfer of care work and would have been someone she might recommend in that context. It was put to her that Ms Cotter did not know anything about estates or residential care to which the witness replied on she did not know. 

Mr Mulligan stated that he had no prior knowledge of the Complainant, apart from a brief phone call during a previous recruitment process. He was shown an email of May 2023 regarding Tuam Nursing Home and notified the General Manager of Residential Services as it related to that area. It was his evidence that he needed to ensure his team was working together and wanted to know the Complainant’s motivation for sending such an email to Estates rather than internally in the first instance. He asked the Complainant about her motivation when he met with her.

He said that during an initial meeting with the Complainant, she raised concerns regarding waste services and administrative practices. He stated that this was the first time he had heard the term “protected disclosure,” as he was new to the role at the time. He was taken aback by what he described as the Complainant’s approach. The witness recalled the Complainant raising an issue with his manners in an email he had sent and raised a concern about the email to another colleague.

Mr Mulligan was asked about the interview process which he described as challenging and fast‑paced, stating that it was intended to test each candidate’s capacity to respond under pressure, given the seniority of the post. He rejected the characterisation of the interview as “combative”.  He said he had provided an example in response to a competency question regarding a business case he had drafted and implemented.

He confirmed that he had met with Ms Cregan Roche the week before his start date on 15 May 2023, describing the meeting as productive and lasting approximately 1.5 hours. He also confirmed that she brought a list of staff and described the vision for older persons’ services. He denied there was anything specific to individuals or the Complainant.

Mr Mulligan met with Ms Glynn on 15 May 2023 and again the following week, agreeing to meet weekly for four weeks to familiarise himself with the service. He stated he oversaw approximately 1,250 staff within older persons’ services with four direct reports. He denied that Ms Glynn coloured his opinion of the Complainant.

He described preparing extensively for an early team meeting but was shocked at how staff interacted, stating that individuals were “taking pot shots” at each other rather than collaborating. After the meeting, he met the Complainant, who was taken aback by some of the reactions. He asked her if they were on the same page in terms of working together referring to the email, she sent outside of the organisation that he was responsible for.

He referred to an email of 22 May 2023 in which he stressed the need for clear demarcation of roles and mutual respect between services.  He said he followed this with further communication on 23 May 2023, noting that the Complainant later described his email as being blocked by him, and that she said she considered his email intimidating or threatening. The witness stated he was shocked by this characterisation and telephoned the Complainant to clarify matters.

He said that when he spoke on the phone with the Complainant, he reassured her that they were “on the same page” and that all matters raised were addressed at the meeting referred to in the email. 

He confirmed that Ms King was copied on some correspondence by accident and noted that Complainant had taken issue with him introducing himself to Ms King who reported to the Complainant.

He stated that he encouraged open communication, telling the Complainant to “come and talk to me” and to keep him informed.  He acknowledged concerns raised that he had contacted some staff directly but stated that as Head of Service he had authority to contact staff within his remit, while also respecting governance structures.  He denied any suggestion that he sought to undermine or sideline the Complainant explaining that she had been embedded in the project from the outset

In relation to the Complainant’s email to him on 30 May 2023, Mr Mulligan said he wanted issues dealt with appropriately and asked the Complainant to give certain matters her attention. He also referred to a financial issue of “a couple of hundred thousand euro,” stating he verbally rejected any suggestion that he had used this figure in a threatening or pressurising way. He explained that he came from the charity sector, where much smaller sums were considered significant, and said he would never attempt to dissuade anyone from using protected‑disclosure mechanisms.

During cross‑examination, the Complainant challenged Mr Mulligan on his management approach, his communication with staff, and his understanding of the issues she had raised. The witness stated that he had relied heavily on the Complainant when he entered the role and believed they had worked well together. He denied any suggestion that their working relationship only improved after solicitors became involved.

The witness strongly denied that Ms Cregan Roche had marked her card. He stated there was no protected disclosure risk on the risk register presented at the handover.

He said he had attempted to bring structure to the service from the outset, arranging an event in November to set out his expectations for the service. He maintained that he consistently picked up the phone to obtain answers and support staff. He said he became aware of the issues raised by the Complainant on 23 May 2023.

When asked about the meeting involving medical officers, he stated he did not believe he had ever been formally informed of a protected disclosure and that he understood the meeting to have been constructive, with both sides expressing their views.

The Complainant questioned him about a phone call on 30 May 2023. He stated that her tone was heated, prompting him to “walk it back.” He denied having any pre‑conceived view of her, though he acknowledged her remark advising him not to become caught up in staff disputes.

He accepted that the environment was highly stressful and that pressures were intense, describing the situation as one of “building people” and not linked to any personal conflict with the Complainant.

In closing, the Respondent submitted that the Complainant’s allegations amounted to a grievance rather than penalisation and that the Respondent had always acted appropriately. It was argued that efforts were made on 23 May 2023 to address the issues raised, and that no adverse decision was taken in advance of, or arising from, the Complainant’s concerns. The Respondent maintained that the matters relied upon by the Complainant properly fall within industrial relations, not under the penalisation provisions.

The Respondent highlighted that Mr Mulligan had no prior knowledge of the Complainant’s protected disclosure and thus could not have acted with retaliatory intent. From his own evidence, the Respondent argued, it was clear that his conduct during meetings and interactions did not amount to penalisation, and that any tension experienced by the Complainant was linked to operational issues rather than the protected disclosure.

The Respondent rejected suggestions that interactions at Tuam, including with Mr Glouster, demonstrated detriment or damage, stating that nothing raised in that context amounted to penalisation. The Respondent further submitted that the Complainant had not been prevented from asking questions, nor was she excluded, and that any reference to failure to introduce himself or to tone in emails did not meet the statutory threshold for penalisation.

On the promotional competition, the Respondent argued that the Complainant simply did not meet the competency threshold and that the properly constituted, experienced panel reached its decision based on her interview performance. They denied any suggestion that Ms Cregan Roche predetermined the outcome or influenced the Chair, relying on her uncontested evidence as to the integrity of the process.

The Respondent noted that the Complainant availed of the appeals process, and that the outcome supported the original decision: she had not met the required competencies and had therefore not qualified. They argued this was a legitimate assessment of capability rather than any form of penalisation.

Finally, the Respondent submitted that no evidence had been produced showing good faith detriment or any causal link between the protected disclosure and the matters complained of, asserting the Respondent had “met the burden” in rebutting the claim

In conclusion, it was submitted that in the absence of the “precise legal test” following the amendments to the 2022 Act “it appears that the focus should be on the factual reason for the act or omission which is alleged to constitute the penalisation”

The Respondent relied upon the following caselaw: -

Aidan & Henrietta McGrath partnership v Anna Monaghan (PDD162) and Tony & Guy Blackrock v O’Neill (HSD095) Conway v The Department of Agriculture, Food & the Marine, [2020] IEHC 665, Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87 and Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, Barrett v Commissioner of An Garda Siochana [2023] IECA 112, Clarke v CGI Food Services [2020] 3 IR 389, Chief Constable of West Yorkshire v. Kahn [2001] 4 All ER 834, Manchester NHS Trust v. Fecitt [2011] EWCA 1190, and Jesudason v. Alder Hey Children’s Foundation Trust [2020] EWCA Civ 73, Jesudason v. Alder Hey Children’s Foundation Trust [2020] EWCA Civ 73.  

Preliminary Matter - Statutory Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 (“2015 Act”), provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant’s timeline of events can be summarised as follows: she initially raised protected disclosures in January 2022, 14 February 2022 and 19 May/29 July 2022, with formal submissions to the HSE PDO on 3 February 2023 and 19 April 2023; that key detriments, including being repeatedly deemed not qualified in competitions on 14 and 15 March 2022, 29 June 2022, 8 November 2022 and 3 February 2023, occurred after her initial disclosures; that two working days after a written disclosure on 19 May 2022 she was informed that the removal of half her General Manager duties was being made permanent; and that she was criticised by the Head of Service on 23 May 2023, shortly after the 19 April 2023 formal submissions.

The complaint was referred to the Workplace Relations Commission on 5 July 2023.

Applying Section 41 (6) of the 2015, the cognisable period is from 6 January 2023 to 5 July 2023.

 For completeness the jurisdiction of the Workplace Relations Commission is up to and including the date of referral of the complaint on 5 July 2023. Anything beyond this date cannot be considered in this decision.

The Complainant submitted the timing and sequence, beginning after her initial disclosures and continuing beyond her formal PDO submissions, demonstrate a pattern of negative treatment temporally proximate to the disclosures, which she contends amounts to ongoing penalisation.

 It is noted there was no application seeking an extension of time.

In reply, the Respondent that the there is no provision for continuum in the Protected Disclosure Acts unlike the Employment Equality legislation.

The Respondent relied upon the Labour Court determination of Aldi Stores (Ireland) Ltd. V Suleman Kayani (PDD222) wherein the Court did not consider the delay due to the Complainant pursuing internal grievances, suspension and attendance at his GP as reasonable grounds for an extension of time. It stated, “If anything, these are arguments to suggest that the Complainant could have, and should have, dealt with the lodgement of a complaint within six months of the events that he claims amount to penalisation.”

It is clear that the allegations of penalisation relating to the recruitment processes, procedural unfairness, removal of duty and allegations against the behaviour of senior management occurred in 2022, outside the cognisable period.

I find the jurisdiction of the WRC in this complaint is confined to allegations of penalisation that occurred within the cognisable period for the complaint where there is no reasonable cause shown for the delay and all matters which arose prior to the cognisable six month period up to 6 January 2023 are outside the scope of this decision.

Substantive Matter

The cognisable period for this complaint is from January 2023 to June 2023. The amending provisions of the Protected Disclosure Act 2014 (the “2014 Act”) commenced from 1 January 2023. Accordingly, it is the Act as amended, Protected Disclosures (Amendment) Act 2022 (the “2022 Amendment Act”) that applies to the complaint made by the Complainant.

Protected disclosure is defined by Section 5 of the 2014 Act. In this case, the Respondent accepted that the Complainant made a protected disclosure.

What remains in dispute is the allegation the Complainant was penalised as a result of raising the protected disclosure on 19 April 2023.

The definition of penalisation was amended in Section 3 (a) (ii) of the 2022 Amendment Act:-

“penalisation’ means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

The 2022 Amendment Act moved away from the “but for” penalisation test set out inO’Neill -v- Toni and Guy Blackrock Ltd [2010] 21 ELR 1. Instead, Section 21 (7) (c) of the 2022 Amendment Act, the burden of proof rests with the Respondent to the employer, and penalisation will be deemed to have been a result of the reporting person having made a protected disclosure, unless the Respondent can establish that the act or omission was justified on other grounds.

The caselaw is clear that there must bea“the nexus or connection between the alleged protected disclosure and the alleged detriment suffered” Ní Raifeartaigh J, Barrett v Commissioner of An Garda Siochana [2023] IECA 112,

Ní Raifeartaigh J. referred to Jesudason v. Alder Hey Children’s Foundation Trust [2020] EWCA Civ 73 in which that court had summarised the position as follows: “There must be a link between the protected disclosure or disclosures and the act, or failure to act, which results in the detriment”

The protected disclosures were accepted.

On the evidence presented, I find that the Respondent has discharged the burden in establishing the acts complained of by the Complainant were justified on other grounds. The Complainant asserted that she was overlooked for Head of Service positions for which she believed she was well‑qualified and in which she had long acted, while less experienced candidates were promoted ahead of her. However, her evidence was contradictory to that accepted during cross examination. It was accepted by the Complainant in cross‑examination that she accepted the overall recruitment process, that Ms Cregan Roche had the necessary interview training, and that she did not meet the overall competency threshold, though she disagreed with the interview questions. The Respondent’s witnesses gave clear evidence that decisions relating to the competition were based on competency scores and panel assessment with a panel of three interviewers who must come to an agreed consensus. Of particular relevance was the Complainant’s availing of an independent appeal of the recruitment process, which was found to have been fair, properly constituted, and compliant with established procedure. Her failure to meet the required competency threshold cannot, in itself, amount to penalisation.

The timeline has also been considered. The Complainant submitted that she raised the first protected disclosure with Ms Cregan Roche as Chief Officer on 31 January 2022 and subsequently with the HSE NOPD on 19 April 2023. The second disclosure was raised on 19 May 2022 to the Chief Officer and to the HSE NOPD on 3 February 2023. The interviews for the Head of Service took place in January 2023, with the outcome issued on 3 February 2023. This was over one year after the Complainant emailed the Chief Officer regarding the concerns in relation to the first disclosure, and nine months after the second disclosure. In cross‑examination, when asked whether her complaint was that she was penalised because the Chief Officer awarded her 35% in the interview a year later, she replied “no”. It is also noted that the Complainant waited until 3 February 2023, the date the recruitment results issued, and again a few weeks later on 19 April 2023, to refer the same disclosures to the HSE NOPD.

The delay of three weeks in the interviews due to the illness of a panel member was identified by the Complainant as a detriment. This is not accepted, as the delay applied equally to all candidates.

There was no tangible evidence presented by the Complainant that the successful candidate was less experienced or less qualified than she was. Instead, at the hearing the Complainant sought to reenact the interview process with Mr Mulligan, attempting to ascertain his suitability for the role rather than putting concrete evidence to him.

The Court of Appeal has been clear that there must be a link between the protected disclosure and the alleged act; no evidence of such a nexus was established. On balance, I find that the Respondent has objectively justified its recruitment to the Head of Service position and the Complainant was not penalised.

The Complainant gave evidence that in May 2023 the newly appointed Head of Service criticised her for raising issues, and she believed this confirmed that the detriment she was experiencing was linked to her protected disclosures.

Having considered this evidence carefully, I am satisfied that while the Complainant genuinely perceived her treatment by the new Head of Service as negative, her account was based largely on inferred motives and expectations of managerial behaviour rather than on identifiable detrimental acts. The Complainant submitted that Mr Mulligan’s approach to her resulted from her raising protected disclosures, both reports disclosed before he took up the Head of Service role. No evidence was presented to support her assertion that the Chief Officer had “marked her card” with Mr Mulligan. Their employment overlapped for only a number of weeks before she took leave in advance of her retirement.

Despite the allegations, it was clear from the hearing that the Complainant and Mr Mulligan worked very well together.

Mr Mulligan’s evidence, which I accept, was that he was unaware of the protected disclosure at the time of the key interactions complained of, and that his communications with the Complainant were operational in nature. He had only taken up his role as Head of Service on 15 May 2023 and was immediately presented with emails issued by the Complainant to external parties without prior engagement with him. It was the Complainant herself who first raised the protected disclosure during their initial meeting. While she may have interpreted some of his communications as critical or unsettling, the evidence does not establish that any such interactions were retaliatory or linked to the protected disclosures, but instead demonstrates an objective grounds.

In respect of the Tuam event, I am satisfied that no evidence of penalisation was presented. The Complainant stated that at an event in Tuam in May 2023, attended by the CEO, Mr Gloster, she was ostracised and publicly humiliated by the Chief Officer. Witness evidence confirmed that the event was busy, attended by many individuals. There was no evidence of any detrimental treatment occurring. No act or omission was identified that could reasonably fall within the statutory definition of penalisation under Section 3(a)(ii) of the Protected Disclosures (Amendment) Act 2022, and no detriment was demonstrated.

Accordingly, even taking full account of the evidence presented, I am not satisfied that there is clear evidence of penalisation as a result of raising protected disclosures. No nexus has been established between the Complainant’s protected disclosures and the allegations of penalisation.

For these reasons, I find the complaint is not well founded.  

I find the complaint is not well founded. 

Penalisation , Protected Disclosure