Query:
“One of our employees has made a number of complaints to us, some of which have been assessed as protected disclosures. All reports are being investigated accordingly. Although the discloser is present in the workplace, they do not appear to be carrying out work that has been allocated to them and relations with line managers have deteriorated since the reports were made. No medical certificates have been submitted by the worker indicating stress or any other form of illness. What can we do in this instance to address the worker’s performance issues?”
Response:
As a general principle, if an employee is not performing duties allocated to them and has not submitted a medical certificate to explain why this is the case, then normal performance management policies and processes should apply.
The Statutory Guidance for public bodies and prescribed persons states:
“In general where a protected disclosure is made by a worker during an investigation, disciplinary or other process involving the worker, this should not affect those distinct processes, except where the investigation, disciplinary or other action represents, in essence, a form of penalisation for making a protected disclosure. This should be confirmed in the Procedures. The Procedures should make clear that where a worker has made a report, whether or not that has been assessed or investigated, the worker is still required to conduct themselves professionally and to continue to carry out their duties as normal. As noted above, the worker is not required or entitled to investigate matters themselves to find proof of their suspicion and should not endeavour to do so. Normal management of a worker who has made a report does not constitute penalisation. This can include the taking of disciplinary action against the worker for matters unrelated to the substance of the report” (section 12.5).
Employers should always carefully document the rationale for any performance management measures. However, in cases where that employee has made a protected disclosure, management should be aware of the additional legal risks that could arise.
Under the Protected Disclosures Act (Amendment) Act 2022 (PDA) there is now a presumption that any penalisation of a reporting person is linked to their disclosure, unless it can be proven otherwise. The decision to investigate, initiate performance management processes, or take disciplinary action, could all constitute forms of penalisation if they are not clearly justified. Even where some action against the reporting person may justified, if it is found to be connected to a protected disclosure, it could be considered penalisation.
This presumption is rebuttable, if it can be shown – on the balance of probabilities – that such action was not due to the protected disclosure, however additional caution should be exercised given the legal risks involved, as well as the associated financial implications and potential for reputational damage.
Some considerations:
• If there is any uncertainty or doubt as to whether or not a report is a protected disclosure, it may be advisable to seek legal advice on the matter.
• Access to the employer’s Employee Assistance Programme (or similar) should be communicated with workers during all stages of the protected disclosure process.
• Poor performance and breakdown in relationships could be due to the stress of making a protected disclosure or any retaliation for having done so. Where this is case, any determination on whether the worker is fit for work will be a matter for the worker’s GP and/or the employer’s occupational health advisor.
• Deteriorating relations with line managers, or performance issues should be monitored and informal procedures aimed at addressing these in a non-judgemental way should be used as soon as possible. Professional mediation might also be sought between workers where informal procedures do not resolve disputes.
• Grievances may contain complaints of retaliation, although may not be articulated as such. Care should therefore be taken to properly screen to identify any concern of penalisation.
• Ostracisation is a common form of penalisation. This can make working life difficult for the reporting person, can be hard to identity, and may impact working relationships and performance.
• Distinguishing between protected disclosures and grievances can be difficult. Only grievances which exclusively affect that worker are not protected and therefore many grievances made by workers may ultimately be found to be protected disclosures in a court.
A risk assessment of any potential exposure to penalisation to the employee should form part of the initial assessment of the protected disclosure. This can help identify and mitigate perceived risks, as well as offer an opportunity to support employee performance.
Version 2: Last updated 27 November 2024. Originally published 25 November 2024. This helpdesk answer is for general information only. It is not legal advice and should not be relied upon as such. We strongly recommend that those dealing with protected disclosures should obtain legal advice if they are in any doubt about a specific course of action.
Helpful Resources
• The Protected Disclosures Act
• Statutory Guidance for public bodies and prescribed persons (see section 12.5 for information on performance management)
• TI Ireland Speak Up Safely Guide
Additional links and resources may be added as they become available. If you think we’ve missed anything, please contact support@transparency.ie