29 Oct Protected Disclosure Penalisation Award

The Complainant was awarded €4k compensation for penalisation in respect of how his protected disclosure was handled, and his employer ordered to implement it’s own Protected Disclosures Policy and resolve outstanding questions of fact as raised within the disclosure (Ref ADJ – 00017774).

The Complainant, a senior healthcare clinician had raised a protected disclosure in March 2016 regarding how a psychologist colleague was caring for patients. A Dignity at Work complaint was also submitted by him at this time. The psychologist then submitted a counter Dignity at Work complaint, in May 2016 (which was re-submitted in September 2016). The Complainant alleged the counter claim was based on the substance of his protected disclosure, and it was now being used against him. The Complainant submitted that there was a danger of cross contamination between the two processes, and his good name as a senior clinician was at stake. The Complainant further outlined that the counter Dignity at Work complaint was at the reporting stage, when the Terms of Investigation had not yet been agreed for the Protected Disclosures Investigation, and that his Protected Disclosure should have been processed first. The Complainant said he was penalised due to this delay, yet the retaliatory Dignity At Work process based on his own disclosure, had proceeded with speed. The Complainant also outlined that his own Dignity At Work complaint was not progressed after it was initially screened, due to the exclusion of a document.

The Respondent employer denied that the Complainant had been penalised, and said his protected disclosure was still being reviewed, and any claim of penalisation was premature. The Respondent said the Complainant had declined to engage with the investigation of the counter Dignity at Work complaint, as he wanted his protected disclosure to be dealt with first. The Respondent also said that it had sought the Complainant’s input to the Terms of Reference for the investigation of his Protected Disclosure, but he refused to agree the Terms of Reference and therefore delayed the process, but in any event they contended that the delay did not have any impact on him.

The Respondent acknowledged that the psychologist’s complaint did include some of the issues raised in the Protected Disclosure, but submitted that the complaint also addressed other issues which had arisen both before and after the disclosure.

The Adjudication Officer reviewed and detailed the Respondent’s Protected Disclosures Policy and determined that the Respondent had not followed it’s own policy in terms of how it had handled the protected disclosure, with matters raised not being addressed in a timely manner. It was also noted that the Policy did not require that Terms of Reference were agreed with the Complainant in his capacity as the “Discloser”, and this gave him a more involved but unnecessary role in the process. The Adjudicator also highlighted that the progressing of the Dignity at Work complaint to deal with matters contained within the Protected Disclosure, was problematic due to the fact that findings were first to be made on the substance of the issues within the Protected Disclosure, therefore undermining the Protected Disclosures process.

The Adjudication Officer awarded €,4,000 in compensation for the inconvenience caused, and determined that the Complainant had suffered detriment due to the delays he experienced in his Protected Disclosure being dealt with, and also because the Dignity At Work process was inappropriately firstly seeking to review the same issues within his disclosure. The Respondent was further ordered to implement its Protected Disclosures Policy and to resolve the outstanding questions of fact as raised by the Complainant, who had since left the Respondent’s employment for other reasons.

Whilst this case was somewhat unusual in some respects, due to the sequence of complaints with a protected disclosure, and two dignity at work complaints, followed by the counter dignity at work complaint being amended and re-submitted, there are some basic lessons that can be highlighted for all workplace reviews/investigations. In this regard, it is critical that the relevant policy and process must always be followed fully, and matters dealt with in a timely manner. If you require any advice on dealing with workplace investigations please contact Carmel Murphy by emailing info@hrsolutions.ie or Telephone (071) 9642748.