Cara Walsh and Michelle Loughnane

Robust health and safety measures have been a hot topic in workplaces since 2020. Employers grappled with the challenges of providing safe places of work and safe systems of work during an evolving pandemic. Risk assessments have been updated and safety statements adjusted for employees returning to the workplace.

The last few years have been difficult for employers to navigate to secure and manage the safety, health and welfare of employees. With a huge focus on discharging the common law duty of care and statutory duties, employers may not have considered the protections afforded to employees who are penalised for raising health and safety concerns regarding work.

Protection against dismissal and penalisation

The Safety, Health and Welfare at Work Act 2005 Act protects employees against dismissal and penalisation as a result of raising complaints regarding health and safety in the workplace.

Section 27 (1) defines penalisation as:

Section 27 (2) sets out that penalisation can include but is not limited to:

• suspension, lay-off, or dismissal or the threat of same;
• demotion or loss of opportunity for promotion;
• transfer of duties, change of location of place of work, reduction in wages or change in working hours;
• imposition of any discipline, reprimand or other penalty; and
• coercion or intimidation.

Section 27 (3) specifically provides that an employer shall not penalise or threaten penalisation against an employee for:

• acting in compliance with the relevant statutory provisions;
• performing a duty or exercising a right under the relevant statutory provisions;
• making a complaint/representation to a safety representative/employer/HSA relating to safety, health and welfare at work;
• giving evidence in proceedings in respect of enforcing relevant statutory provisions;
• being a safety representative or an employee performing functions under the relevant statutory provisions; and
• refusing to return to the place of work in circumstances where the employee believed there to be a serious and imminent danger or for taking steps to avoid such danger.

If an employee has his/her employment terminated as a result of raising health and safety complaints in the workplace, this dismissal will be deemed to be unfair. Section 27 (4) provides that the dismissal of an employee shall be deemed for the purposes of the Unfair Dismissals Act 1977–2002 to be an unfair dismissal if it results wholly or mainly from a penalisation.

Redress

There is no limit on the amount of compensation which may be awarded for a successful complaint of penalisation under the 2005 Act. The cost of getting it wrong is significant for a business. Complaints of this nature must be submitted to the Workplace Relations Commission within a period of six months from the date of the penalisation/dismissal. Having heard the evidence, an Adjudication Officer has the following options for redress under Section 28 (3) of the 2005 Act:

• declare that the complaint was or, as the case may be, was not well founded;
• require the employer to take a specific course of action; and/or
• require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

One of the most well known cases concerning complaints for penalisation under the 2005 Act is the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095. Mr O’Neill was employed as a colour technician for the period from 2001 until March 2007, when he was dismissed. Mr O’Neill argued that his dismissal resulted from having raised health and safety issues with the employer and the National Employment Rights Authority.

Mr O’Neill told the court that it was necessary to wear latex gloves while handling colouring agents, which contained chemicals. When the employer allegedly started to provide employees with cheaper and lower quality gloves, Mr O’Neill told the court he informed his employer that the new gloves were inadequate on health and safety grounds. He also told the court that his concerns were dismissed in robust language, and he was informed that he could buy his own gloves. Mr O’Neill did purchase suitable gloves from his own resources and continued to raise the issue with his employer. He also submitted a complaint to the National Employment Rights Authority.

Mr O’Neill then told the court that he received a verbal warning when he was approximately 10 minutes late for work. Mr O’Neill was on another occasion unable to attend work due to illness and requested that his sister notify his employer of his absence due to illness. His employer took issue with the method of reporting and tried to issue Mr O’Neill with a written warning, which Mr O’Neill refused to accept because he considered it unjustified. Mr O’Neill was then later accused of stealing stock from the shop. Mr O’Neill also informed the court that he was later called to a meeting wherein he was handed a letter notifying him of his dismissal. He requested a reason for the dismissal but was refused an explanation.

The employer denied that the decision to dismiss Mr O’Neill was influenced by the health and safety complaints. The employer maintained that Mr O’Neill was dismissed for misconduct, including persistent lateness. The Labour Court found that Mr O’Neill’s complaint was well founded and made an award of compensation of €20,000.00.

Burden of proof

The proofs required in order to make out a case for penalisation under the 2005 Act and the burden of establishing those proofs were considered by the Labour Court in the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095.

In relation to the burden of proof, the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace. Once these two proofs have been satisfied, it is for the employer to satisfy the court that the health and safety complaints did not influence the treatment of the employee. The Court stated:

The Labour Court also gave consideration to what was required in order to discharge this burden or proof stating:

In summary, the employee must establish the following in order to discharge the burden of proof:

• the employee must prove that he/she made a complaint regarding health and safety issues in the workplace;
• the employee must prove that he/she suffered some sort of detriment as a result of making the complaint concerning health and safety issues; and
• the employee must prove that this detriment would not have been suffered if the complaints were not raised.

Conclusion

Dismissal or the threat of dismissal are courses of action on which employers will generally take advice before communicating with an employee. However, employers may not readily identify the potential exposure for penalisation, particularly given its very broad definition under the 2005 Act.

The manner in which employee concerns regarding health and safety are addressed is important as the financial and reputational repercussions of getting it wrong are significant for any business. Good communication and training for line managers on how to respond to health and safety concerns raised by employees will go a long way in reducing the potential for exposure to penalisation complaints.

• Cara Walsh is a partner and Michelle Loughnane is a senior associate solicitor at Mullany Walsh Maxwells LLP.