Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on the Safety, Health and Welfare at Work Act.

In Stobbart (Ireland) Driver Services Limited and Scott Hazel HSD172, the Labour Court has very helpfully set out the law relating to penalisation under the Safety, Health and Welfare At Work Act.

The Court has set out in particular section 27, subsection 3. The Court has held that in order for a complainant to sustain a complaint of penalisation, it is essential that the detriment complained of - which in this case was a final written warning - be causally connected to one or more of the protected acts referred to in section 27(3).

The Court pointed out that a complainant cannot avail himself of protections in section 27(3) of the Act where reference to breaches of the Organisation of Working Time Act 1997 or the Terms of Employment (Information) Act 1994. The driver in this case had contended that there was an alleged dangerous work situation (potential driver fatigue).

The Court helpfully referred to the case of Aranbel Construction –v- Braney and Lacey HSD086 and HSD087 where the Labour Court had found that the circumstances of two crane drivers who operated tower cranes refusing due to wind conditions to operate the cranes and lift large panels the height of five floors fitted the circumstances envisaged in section 27(3)(f) of the Act. It was a clear and present danger in the circumstances. The drivers were entitled to refuse to operate the cranes. In this case, the Court was satisfied that the risk of driver fatigue was not such as could amount to the circumstances of serious and imminent danger envisaged by the relevant sections of the Act which could not reasonably have been averted.

The Court further noted that there was no legal impediment to the employee undertaking the number of working hours which was going to be required of him to undertake the role in question. The Court therefore found that the complainant did not engage in a protected act as per the legislation.

While the issue was not covered by the Labour Court, it would be interesting to see what the attitude of the Court would be if the employee was requested to undertake working hours in excess of those which the employee was legally entitled to undertake.

In considering claims under section 27, subsection 3, it is important for employees to consider the relevant statutory provisions very carefully before claims are brought. This is a very useful decision of the Court setting out both the law and applying it to the facts in this particular case.