The question is whether certain employee’s complaints should be treated as normal personal workplace grievances or, instead, be considered protected disclosures.

In the case Tibor Baranya v Rosderra Irish Meats Ltd 2021, an employee claimed he was dismissed for making a protected disclosure, after having notified his employer that he was suffering from pain caused by his work and asked for a change of job.

The employer, on the other hand, argued that the employee's statements cannot be considered protected disclosures because they were not a matter of public interest, contesting also the alleged reasons for dismissal.

The Protected Disclosures Act 2014 protects workers in the public, private and not-for-profit sectors from retaliation if they speak up about wrongdoing in the workplace.

A protected disclosure is defined in Section 5 of the Act as a disclosure of relevant information, in the reasonable belief of the worker, comes to the attention of the worker in connection with the worker's employment, and made by a worker in a specified manner.

Relevant wrongdoings for the purposes of the Act can be, for example, that an offence has been committed, a person has failed to comply with a legal obligation, a miscarriage of justice has occurred, health or safety of any individual has been damaged, etc.

The Workplace Relations Commission to the Labour Court and the High Court had ruled that the complaint made by the employee did not constitute a protected disclosure for the purposes of the Act. 

The Supreme Court, instead, distinguishes between breaches of an employee's contractual rights, that are not considered protected disclosures, and employer's failure to follow statutory law: an employee’s complaint on this matter, indeed, can be protected disclosures.

According to the Court, complaints by employees relating to their health and safety at work can be protected disclosures, even if they are related to their own personal health (and are not a matter of public interest) or safety endangered by workplace practice.

The Supreme Court ruled that Mr. Baranya’s complaint could potentially be a protected disclosure and the Labour Court should revisit the claim to make rulings on the specific factual position.

This also has an important effect on the consequences of a dismissal. Under the current approach, a dismissal under grounds of an employee making a protected disclosure, if unlawful, leads to an increase in compensation of two to five years' pay.

It is important for employers to consider the extent of this decision, which may facilitate whistleblowing becoming an increasing issue in dismissal cases.

Irish Business and Employers Confederation (IBEC) has expressed its concern about the impact of the Irish Supreme Court’s finding that the intended exclusion of grievances and/or other purely private complaints as set out in the Protected Disclosures Act 2014 is ineffective. 

According to IBEC, the protections contained in the Irish whistleblowing legislation are some of the most extensive in Europe. Notably, the Protected Disclosures Act 2014 is one of the most punitive pieces of national whistleblowing legislation across member states and it is regarded as a model of best practice for other countries to follow in implementing whistleblower legislation as it provides robust protection for reporting persons.

IBEC highlights that in drafting the 2014 Act, the legislature clearly intended to distinguish between grievances which would fall outside the scope of the Act’s protections and protected disclosures made in the public interest which would enjoy the extensive protections of the Act. A Code of Practice issued following the introduction of the 2014 Act made this distinction and stated that complaints specific to the worker in relation to duties, terms and conditions or employment, working procedures or working conditions are personal grievances which cannot amount to protected disclosures. 

According to IBEC such a distinction is appropriate and reflects the need for protected disclosures to be made in the public interest.

Since the existing whistleblowing legislation is currently being amended to facilitate transposition of the Whistleblowing Directive it could be an opportunity to address the issue.