The High Court has allowed an appeal by Tom Nolan over the Labour Court’s rejection of his protected disclosure claim against Fingal County Council, ruling that the Labour Court applied the statutory exclusion too broadly. The claim will return to the Labour Court for a fresh decision on whether Nolan’s complaint amounted to a protected disclosure.
The appeal, heard on a point of law under section 46 of the Workplace Relations Commission Act 2015, concerned reports Nolan said he made to his line manager about harassment, intimidation and threats from service users in 2017 and 2018. He said some incidents took place at his home and that the conduct endangered his health and safety and could involve offences.
Nolan had been responsible for Traveller housing issues while acting in a Grade 7 role. After reporting the incidents, he was moved to another role and location and returned to Grade 6, which the council described as his substantive post. He claimed the transfer and reduction in grade were penalisation for making a protected disclosure. The council disputed that his reports qualified as protected disclosures.
The Workplace Relations Commission rejected the claim in August 2020, finding the reported incidents were committed by third parties and that no evidence established that third-party conduct outside the workplace could be the subject of a protected disclosure. The Labour Court also rejected the claim, reasoning that the council had a duty to investigate health and safety risks and that the reports were therefore excluded by section 5(5) of the Protected Disclosures Act 2014.
The High Court found that reasoning was an error of law. Justice Siobhán Phelan held that the statutory exclusion must be narrowly construed. A general employer duty to provide a safe workplace does not, by itself, mean that investigating a reported matter is the employer’s “function” to detect, investigate or prosecute it for the purposes of section 5(5). Otherwise, the exclusion could undermine the Act’s express coverage of disclosures about threats to the health or safety of any individual.
The court did not decide whether Nolan’s reports were protected disclosures. It also did not decide whether the transfer or change in grade amounted to penalisation, an issue not determined by the Labour Court. The High Court remitted the matter to the Labour Court to decide afresh whether the complaint qualified for protection in light of its interpretation of section 5(5).
Other claims Nolan brought under employment legislation were not before the High Court and remained outstanding before the Labour Court.