1. Introduction

The case of A Massage Therapist v A Massage Therapy Business (ADJ-00043225) is a useful illustration of the operation of the detriment provisions under Section 12 of the Protected Disclosures Act 2014. The case addresses the relationship between the disclosure and the detriment and the application of the burden of proof.

This article addresses the Section 12 framework, the test applied to detriment complaints, and the practical implications for both employers and workers.

2. Legislation and Case Law

The Protected Disclosures Act 2014, as amended by the Protected Disclosures (Amendment) Act 2022, transposes Directive 2019/1937 on the protection of persons who report breaches of Union law. Section 5 of the 2014 Act defines a protected disclosure as a disclosure of relevant information made by a worker in the manner specified in Sections 6 to 10. Section 5(3) sets out the relevant wrongdoings: that an offence has been, is being, or is likely to be committed; that a person has failed, is failing, or is likely to fail to comply with any legal obligation; that a miscarriage of justice has occurred, is occurring, or is likely to occur; that the health or safety of any individual has been, is being, or is likely to be endangered; that the environment has been, is being, or is likely to be damaged; that an unlawful or otherwise improper use of funds or resources of a public body has occurred, is occurring, or is likely to occur; that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement; that a breach has occurred, is occurring, or is likely to occur; or that information tending to show any matter falling within any of the preceding paragraphs has been, is being, or is likely to be concealed or destroyed.

Section 12 of the 2014 Act provides that an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. Schedule 2 to the Act provides a list of forms of penalisation, including suspension, lay-off, dismissal, demotion, transfer, the imposition of disciplinary sanctions, the giving of unfavourable references, harassment, ostracism, and any other unfavourable treatment.

The 2022 amendments expanded the list of forms of penalisation and reversed the burden of proof. The complainant must establish the protected disclosure and the detriment; the respondent must prove that the detriment was not on grounds of the disclosure.

The test for detriment is broad. The Labour Court in Aranmore Heating Ltd v John McCabe PDD216 held that detriment includes any treatment that, viewed objectively, would be regarded as a disadvantage to the worker. The detriment need not be intentional, but it must be objectively identifiable.

3. Decision

In the Massage Therapist case, the Adjudication Officer considered a complaint of detriment under Section 12 in circumstances where the Complainant had made disclosures concerning health and safety and the treatment of clients. The Adjudication Officer applied the reversed burden of proof.

The Adjudication Officer found that the Complainant had established the protected disclosure and the detriment. The burden then shifted to the Respondent to prove that the detriment was on grounds other than the disclosure. The Respondent was unable to discharge the burden.

The Adjudication Officer awarded compensation under Section 12 reflecting the seriousness of the detriment and the impact on the Complainant. The decision is illustrative of the practical operation of the reversed burden of proof in Section 12 cases.

The decision is also illustrative of the breadth of the Section 12 protections. The penalisation included multiple forms of unfavourable treatment falling within the Schedule 2 categories.

4. Takeaway

For employers, the Massage Therapist case is a cautionary illustration. The reversed burden of proof requires the employer to articulate and document the legitimate grounds for any adverse treatment of a worker who has made a protected disclosure. The absence of contemporaneous documentation is, in practice, fatal to the defence.

Where an employer is contemplating action in respect of a worker who has made a protected disclosure, the action should be carefully documented and justified by reference to legitimate business grounds. The temporal proximity of the action to the disclosure should be considered.

For workers, the Section 12 protections offer a meaningful remedy for detriment falling short of dismissal. Practitioners should identify all forms of detriment, by reference to the Schedule 2 categories, and should plead each.

Practitioners should also consider the parallel availability of unfair dismissal protections where the detriment includes dismissal. Section 6(2)(ba) of the Unfair Dismissals Acts provides for an enhanced statutory cap and an alternative remedy.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie