Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on an important clarification of the law on protected disclosures.

The issue of penalisation arose in the case of Fingal County Council and John O’Brien. In that case, being reference PDD184, the Labour Court held that there had been protected disclosures. The employee contended that he had been moved to a new role and that it was effectively a demotion.

The Court set out that there were three tests that had to be proved:

The Court pointed out that they had previously considered this issue in the case of Aidan and Henrietta McGrath Partnership –v- Anna Monaghan PDD162 where the Court had stated: “..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 the 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 motives or reasons which influenced the decision maker in imposing the impugned decision.

In this case the Courts held that after hearing the submissions the employee had been reassigned some months later. The Courts were not satisfied the employee had suffered a detriment. The Court also pointed out that there was no evidence that the transfer occurred other than in the normal way such transfers take place in a public body as part of a routine and legitimate and wider reorganisation of staff. The Court pointed out that the employee did not suffer any reduction in salary or other benefits following the transfer. As a consequence, they held that there had been no penalisation under the Act.

This is a very important decision in clarifying the law on this point.