17/12/2020 Briefing

Prohibition against penalisation

Employers are statutorily required under the Safety, Health and Welfare at Work Act 2005 (the “Act”) to take the necessary steps to protect the safety, health and welfare of employees.  Though not one of the most common legal provisions with which employers might interact, section 27 of the Act prohibits penalisation or a threat of penalisation in a range of circumstances, including those where an employee reasonably believes that there is serious and imminent danger, which they could not reasonably be expected to avert and they:

  1. leave (or propose to leave) work; or
  2. while the danger persists, refuse to return to their place of work or any dangerous part of their place of work.

Notably, there is no limit on the amount of compensation that may be awarded under section 27 of the Act.  In the context of the pandemic, employers should be mindful of the Act when dealing with employee complaints and COVID-19 related absences from work.

In a recent decision, the Workplace Relations Commission (“WRC”) reaffirmed its position on employers imposing penalties on employees and acts as a timely reminder of how this lesser-known legislative provision can bare its teeth. We also look at a recent UK High Court decision which may result in the UK equivalent to section 27 of the Act being extended beyond employees to a more broadly defined category of worker, including those working in the “gig economy”.

An Agency Nurse v State Detention Body[1]

Background

The complainant was an agency nurse and the respondent was the end user/hirer operating the prison service in Ireland.  The complainant began work for the respondent in 2016 and moved between locations, arranging her work shifts both with the agency and with the respondent.  She engaged with two line managers – one at the agency and one at the respondent.

The respondent required all its nursing staff to complete a number of courses before commencing work.  Despite numerous reminders, the complainant in this case had not done so.  In November 2018, the respondent was sexually assaulted by a prisoner and subsequently made a complaint to the respondent.  The week following her complaint, she was rostered to work where the assault was alleged to have taken place and no protective or preventative safeguards were put in place.  The complainant was hoping to be permanently assigned to the respondent and told an employee of the respondent that she was afraid to follow up on her report as she was concerned if she “rocked the boat” she would not be booked for any further shifts.

Following a report by an anonymous whistleblower, the complainant’s sexual assault was raised by a TD at a Public Accounts Committee (“PAC”) hearing in the Dáil on 17 January 2019.  On the same day, the respondent’s National Operational Nurse Manager (“NONM”) contacted the complainant’s line manager in the agency to advise that the complainant would not be receiving shifts at the respondent’s sites going forward.

When the complainant sought an explanation for the respondent’s decision, two reasons were provided to her – her failure to complete the requisite training courses and an unrelated incident in a respondent location prior to November 2018.  The complainant covertly recorded this conversation and used it as the basis for her complaint to the WRC.

Before the WRC

The complainant submitted to the WRC that the reason for her dismissal was her complaint of sexual assault and the raising of the respondent’s handling of it before the PAC.  The termination of her placement with the respondent occurred on the same day as the PAC hearing and occurred by way of a telephone call outside of normal working hours.  The proximity of these two events, she alleged, was indicative that she had been effectively dismissed as a result of her safety, health and welfare at work complaint.  She relied on section 27 of the Act.

In response, the respondent argued that it had advised the complainant that once she had completed the outstanding training, they would have been happy to have her back to work.  However, the covert recording and email evidence provided to the WRC did not support this position.

Findings – significant award

In upholding the complainant’s claim, the Adjudication Officer noted that a finding of penalisation was a “very serious matter which should be marked with a substantial award of compensation”.  The complainant was awarded two-and-a-half years’ gross salary of €65,000.

Despite several “strong emails” requesting her to complete the required courses, none of the complainant’s shifts had been cancelled prior to the discussion of her assault before the PAC.  Based on the proximity of the PAC hearing to the decision to dismiss and the tone of an email dated 18 January 2019 from the NONM to the complainant’s line manager at the agency, the Adjudication Officer was satisfied that as a matter of probability, the complainant would not have been dismissed had it not been for her complaint regarding her assault being raised before the PAC.

Protection for “Gig Economy” Workers

The UK High Court recently held that the Government failed to implement EU health and safety protection for workers in its “gig economy”.[2]  The case is of particular interest as Ireland took a similar approach to the UK in its implementation of the relevant directives.

Members of the Independent Workers’ Union of Great Britain (“IWGB”) are predominantly low-paid, migrant workers in the “gig economy”.  The IWGB brought an application for judicial review in the High Court, seeking a declaration that the UK had failed to properly implement the following into national law:

  • The “Framework Directive” (89/391/EEC), on the introduction of measures to encourage improvements in the health and safety of workers.
  • The PPE Directive (89/656/EEC), on minimum health and safety requirements for use by workers of Personal Protective Equipment in the workplace.

The IWGB argued that both directives require EU member states to confer protections on “workers”, whereas the implementing UK legislation only covers “employees”.  This gap in protection had existed since the directives were transposed into UK law in 1992.  However the IWGB said the pandemic gave the matter a “particular salience and significance”. The High Court agreed with the IWGB – the directives, by referring to protection of “workers”, impose obligations in relation to a wider category than “employees”.

As in the UK, the equivalent Irish protections afforded by section 27 of the Act (discussed above) and the Safety, Health and Welfare at Work (General Application) Regulations, 2007 (which cover the use of PPE in the workplace) only apply to employees.  It remains to be seen if the decision will be appealed, or whether any changes will be made post-Brexit to address the gaps in protection it has highlighted where there will be no obligation on the UK to do so. Any developments should be closely watched from an Irish perspective.

From a practical point of view, businesses should be aware that the Protected Disclosures Act 2014 protects workers from penalisation where they have made a protected disclosure in relation to the health and safety of an individual.  Workers under the 2014 Act include not only employees but consultants, agency workers, persons undergoing work experience or training, civil servants, members of the Garda Síochána, the Defence Forces or Reserve Defence Forces. In addition, under the Whistleblowing Directive (EU 2019/1937), which is due to be implemented in Member States by the end of 2021, protection is extended to include, amongst others, legal entities, shareholders, volunteers and unpaid interns and trainees.

On this basis, businesses should treat any concerns raised in relation to health and safety as a priority regardless of the status of the person who raises them.

Assessment

Though the case before the WRC dealt with an employee who had effectively been dismissed, it is important to note that the definition of “penalisation” under the Act is very broad and can include lay-off, demotion, the transfer of duties or the imposition of any form of disciplinary sanction.

This recent decision cautions employers to treat employee concerns in relation to their health and safety with care. Any subsequent action taken by an employer that is adverse to an employee who has made a complaint, needs to be capable of being divorced from the complaint to ensure no liability arises. It is clear from this decision that the cost of getting it wrong has the potential to be very high!

[1] An Agency Nurse v State Detention Body  (ADJ – 00023593)

[2] 6. The Independent Workers’ Union of Great Britain v The Secretary of State for Work and Pensions and Others [2020] EWHC 3050