In Jennifer Clancy v The Manager, Templeogue College (ADJ-00042323) the Complainant lodged a number…

In Jennifer Clancy v The Manager, Templeogue College (ADJ-00042323) the Complainant lodged a number of claims with the Workplace Relations Commission (”WRC”), including a complaint under the Protected Disclosures Act, 2014 (“the Act”) which were heard before Adjudication Officer, Breiffni O’Neill.

Facts: The Complainant commenced employment with the Respondent in 2018 as a part-time teacher in the Spanish Department. Due to her family circumstances, she had agreed with the Principal at the time that she would receive mostly morning classes, and that if she was required to work afternoons, it would be agreed in advance and she would be given ample notice so that she could arrange childcare. The Complainant worked no more than one afternoon a week for at least three years, and she was given sufficient notice in advance. It was common practice within the school that teachers would continue to teach the same cohort of students through the school years in order to ensure continuity for both teachers and students.

On 7th February 2022 the Complainant signed a collective grievance, along with 10 other colleagues.  This grievance included concerns around dignity in the workplace, data protection, health and safety and timetable issues, among other matters.  It was accepted by the Respondent that the grievance constituted a protected disclosure.

The Complainant claimed that the Principal’s behaviour towards her changed following the making of this protected disclosure, and a number of issues arose between them.

Prior to the school year 2022 to 2023, the Complainant received a timetable consisting solely of afternoon classes. This was despite her colleagues in the Spanish Department being available to teach afternoon classes which, if allocated to them, would have allowed her to teach the morning classes. This seemed to be the sensible thing to do as it would also allow her to continue to teach the cohort of students she had previously taught as was standard practice within the school.  The Complainant attempted to raise this with the Principal immediately, but she was ”unavailable”.  On a fourth attempt, she managed to speak to the Principal, who said that the hours could not be changed and that her requirement to work morning hours “could not always be accommodated”.  Ultimately the Complainant contacted her ASTI representative as she felt that the Principal’s tone had changed and that she was being approached more aggressively.

Two days later, the Principal arranged a meeting to speak with the Complainant who attended on 26th August 2022, with her trade union representative. However, the Principal was aggressive and demanded an explanation for the Complainant’s absence at an afternoon session of the Haddington Road staff meeting and did not address the matter of the timetable at all.   The Complainant had no knowledge that this was to be discussed at the meeting and had presumed that it was to discuss the timetable. The Principal was so irate at this meeting that she was asked to calm down a number of times and ultimately the Complainant had to suspend the meeting.

On 29th August 2022, the Complainant’s trade union representative wrote to the Principal outlining that the Complainant would have no choice but to resign if her hours were not changed, and notified the Respondent that she was invoking the ASTI grievance procedure.

During this time, the Complainant suffered a flare up in her auto immune condition due to stress, and was certified unfit to work until 26th September.  She received a letter invoking the disciplinary procedure against her on 29th August which lacked detail as to the allegations against her and failed to comply with Department of Education Circular 0049/2018. The Complainant queried this matter with the Principal, but was informed that the letter  “crossed” with the medical certificate and answered no further.

The grievance procedure commenced in early September and despite it being an issue raised in her grievance letter, the Principal refused to deal with the issue around the disciplinary letter being sent to her.  Regarding the timetabling difficulties, the Principal did offer a solution to this, but did not address issues relating to the treatment of the Complainant. The Principal’s suggestion was not satisfactory to the Complainant, and the Complainant made a counter proposal which went unanswered. The grievance procedure stipulated tight deadlines for each stage and due to the lack of response to her proposals, she then indicated her intention to move to stage 2.

The Respondent did not engage appropriately with stage 2 within the timeframe and therefore stage 3 was instigated. This involved the Complainant being invited to a meeting before the Board of Management accompanied by a colleague. At this meeting, contrary to the terms of the grievance policy, the Principal was in attendance, which the Complainant contended was intimidating for her.  The Complainant requested the Principal and Deputy Principal to recuse themselves as the policy stated that their involvement should only be in writing at this stage.  The recusal request was refused, and the meeting proceeded noting the Complainant’s objection.

The Complainant had provided significant written submissions prior to the meeting with initially the Board refused to address as they were “too big”. However, upon the request of another board member, they were eventually provided to members of the Board. After a break where the Principal, Deputy Principal and JMB representative left the room, they returned and the Principal proceeded to make a submission to the Board of Management. The Complainant was not afforded the right to respond to the submission made.

At the end of this stage, mediation was recommended to the Complainant. Despite the Complainant saying that she would need to consider this, she received a letter stating that she had agreed to it. Refuting this suggestion, she requested to move to stage 4 of the grievance procedure. A damaging report was prepared by the Board of Management (written by the Principal) which was then shared with the Stage 4 panel despite the Complainant’s solicitor’s objections to same. During Stage 4 of the process, the Principal made new claims that the Complainant had worked afternoons previously and provided evidence from VSware which the Complainant claimed was altered information.

The Stage 4 Tribunal did not uphold the Complainant’s grievances and therefore she lodged her complaint with the WRC.

Decision: It was agreed by the Respondent that the Complainant had made a protected disclosure within the meaning of the Act. Therefore, the Adjudicator was required to determine whether the Complainant was penalised for doing so having regard to the legislation and established tests.

Section 12(1) of the Act which sets out as follows:

“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.”

Section 3 provides examples of what amounts to “penalisation” within the meaning of the Act.

The Complainant alleged that she was subjected to penalisation by the Principal, the Board of Management, and members of the Tribunal at various stages of the grievance process.

The Adjudicator considered each stage separately and found as follows:

Stage 1 of the grievance process – there was no penalisation as the Principal did attempt to reach a compromise with the Complainant, and the fact that the Complainant rejected the compromise did not amount to penalisation.

Stage 3 of the grievance process – there was no penalisation by the Board in handling this stage of the process because they sought to resolve matters through mediation, even though the manner in which they did so was disingenuous.

Stage 4 of the grievance process – there was no penalisation as the tribunal members were independently appointed by the Complainant’s union and the Respondent’s managerial body.

He then considered the Complainant’s claims regarding:

    • the change of hours
    • change of classes
    • the Principal shouting at the Complainant during the meeting of 26th August
    • the threat of disciplinary action

Considering each of these matters, he found as follows:

    • The change of hours

The Respondent disregarded the working arrangement which had been in place for a number of years when it attempted to change the Complainant’s timetable requiring her to work afternoons in the school year following the making of a protected disclosure by the Complainant.  This constituted penalisation under section 3(1)(c).

    • The change of classes

It was well established in the school that teachers continued with their students and the change to senior cycle students who the Complainant had never taught before constituted penalisation under section 3(1)(f).

    • The Principal shouting at the Complainant during the meeting of 26th August

The Principal shouting at the Complainant at a meeting to discuss the altered timetable on the 26th August 2022, causing her to feel intimidated by the Principal constituted penalisation under section 3(1)(e).

    • The threat of disciplinary action

The Respondent sought to initiate disciplinary proceedings against the Complainant causing damage to her reputation which constituted penalisation contrary to section 3(1)(m).

Once it was established that a protected disclosure was made, and that penalisation occurred, it was for the Adjudicator to determine whether the penalisation occurred because of the protected disclosure that was made.

The Adjudicator was satisfied that the Complainant successfully established a connection between the protected disclosure and penalisation and met the “but for” test as set out in Anna Monaghan and Aidan & Henrietta McGrath Partnership PDD162, notwithstanding that there was no evidence that the other signatories on the collective grievance had been penalised.

Turning to the award, the Complainant’s representative argued that as the Act provides for an employer may be required to pay “compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 260 weeks renumeration”, consideration should be given to the significant legal costs incurred by the Complainant. However, the Adjudicator agreed with the Respondent’s legal representative that as a matter of public policy, legal fees should not be considered when determining the appropriate award. The Adjudicator also agreed with the Respondent’s legal representative that any stress or injury suffered by the Complainant should also be disregarded as these matters should have been the subject of a Personal Injury claim instead, as per Justice O’Donnell in Dillon v Irish Life Assurance plc IEHC 203.

The Adjudicator awarded the Complainant compensation amounting to 15 months’ salary, having given careful consideration to the intention of the Act to provide a high level of protection to those who are penalised as a result of making a protected disclosure, and the need for the award to be effective and dissuasive. The Adjudicator also gave consideration to the requirement set out in Von Colson for awards to be proportionate. He noted that the Complainant did not adduce evidence regarding financial loss, and she did not claim reputational damage arising from the penalisation.

Takeaway for Employers: The Protected Disclosures legislation gives extensive protections to employees who “blow the whistle”, and awards are intended to be dissuasive. It is vital for employers to ensure that they investigate protected disclosures appropriately, and that they ensure that employees are not subjected to treatment which may amount to penalisation under the Act.

Link  – ADJ-00042323 – Workplace Relations Commission

Authors – Nicola MacCarthy and Jenny Wakely

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