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Whistleblowing Legislation Continues to Gain Momentum

Julie Austin



Another injunction was recently granted by the Circuit Court under the Protected Disclosures Act 2014 (the “Act”), the second such injunction in recent weeks and the third ever reported of its kind since the introduction of the Act in 2014 . In Kelly v AlienVault, a senior manager at the defendant company successfully sought interim relief from Cork Circuit Court to prevent her employer from stopping her pay and dismissing her. The company had allegedly attempted to dismiss the claimant by telephone days after her disclosures to the US head office regarding “a catalogue of health and safety disasters” at the Cork site including sewage leaks and complaints about people being locked in toilets for hours.

The employer argued that the decision to dismiss was made earlier, a few days before the employee had made the protected disclosure. However, the Court held that the claimant had “made out a stateable case that she was dismissed because of a protected disclosure”. It granted her injunctive relief pending the final determination on unfair dismissal by the Workplace Relations Commission (WRC). Effectively, this means that the employee will be paid as normal until the WRC adjudicates her claim for unfair dismissal (where it has jurisdiction to award up to 5 years’ remuneration under the Act).

We recently covered the first compensation award under the Act (to a care home assistant, after she made a protected disclosure in relation to the alleged abuse of patients in a nursing home) and the first interim relief granted (in the Lifeline case where two employees were made redundant after allegedly making a protected disclosure) - see our articles here. ­­­­­­

All these cases illustrate a growing trend of the whistleblowing legislation being used to challenge employee dismissals or other forms of alleged penalisation. These cases highlight the much higher risk associated with dismissing an employee who may have made a protected disclosure, even if the employer believes there is no connection between the dismissal and the disclosure.

The Act specifically provides that applications for interim relief must be heard on the day they are presented unless there are exceptional circumstances for postponing the hearing. The increase in the number of applications for injunctions under the Act is putting an already stretched courts service under increased pressure as is evident by the comments made recently by the President of the Circuit Court. In refusing to hear an application for interim relief immediately, Judge Groarke reportedly stated that if the Government was not prepared to appoint new judges to pick up the workload he was "not going to obey their legislative strictures" by granting an immediate hearing. The President used the application as an opportunity to criticise the Government for failure to appoint new judges. The comments were made in the context of another application under the Act, this time by the Principal of St Andrew’s College Junior School in Dublin.

See our previous articles on this topic for a comprehensive overview of the Act - Long-awaited legislation for the Protection of Whistleblowers has finally arrived and Protected Disclosures.