RDJ seeing rise in ‘whistleblower’ claims
Lawyers at RDJ say that they are seeing a “notable increase” in claims being brought under 2014 legislation on protected disclosures in recent years.
The firm says that such claims are made not only by those who have been dismissed from employment, but also by employees who remain in employment but allege penalisation.
“This increase is perhaps owing to employees being more aware of their rights and seemingly being more prepared to issue a claim while still employed, whereas traditionally, employees tended to issue a claim once they left employment,” the RDJ lawyers write.
Claims ‘less burdensome’
In an analysis on the firm’s website, partner Jennifer Cashman and solicitor Leah Moriarty state that the Protected Disclosures (Amendment) Act 2022 has “undoubtedly” had a role in this increase in claims under the Protected Disclosures Act 2014.
The 2022 act, they write, shifted the burden of proof to the employer.
“It is now for the employer to demonstrate that allegedly penalising acts were, in fact, based on duly justified grounds, which means such claims are arguably less burdensome for employees to bring,” the lawyers argue.
They note that the 2022 act also widened the entitlement to seek interim relief from the Circuit Court beyond dismissals to include acts of penalisation while in employment, meaning that employees need not have been dismissed to bring injunctive proceedings against their employer.
Unfair dismissal
A further factor in the increase, according to RDJ, is that employees who do not have the requisite length of service to bring a claim under the Unfair Dismissals Act 1977 can allege that they were unfairly dismissed on foot of a protected disclosure to come within the remit of the 2014 act, as there is no length-of-service requirement.
“This means that employees who are dismissed during their probationary period could take a claim under the 2014 act,” the firm’s lawyers say, adding that they had seen a number of such claims.
“The legal costs associated with these claims are significant, where they involve applications for urgent, injunctive relief,” they state.
High Court decision
The RDJ lawyers’ comments came in an analysis of a recent High Court case, Breban v Catch Security Systems, in which the court granted interim relief to a worker whose employment had been terminated after raising fire-safety concerns.
RDJ says that the court’s “narrow” interpretation of section 5(5) of the 2014 act makes it more difficult for employers to rely on this defence.
Section 5(5) provides that “a matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate, or prosecute and does not consist of or involve an act or omission on the part of the employer”.
“While detecting or reporting certain issues may fall within an employee’s remit, this will not necessarily enable an employer to rely successfully on the exception,” the RDJ analysis states.
The add that the High Court decision confirms that the words “to detect, investigate or prosecute” do not widely embrace general duties.