WRC Awards €8,000 for Penalisation of a Whistleblower. In Bruno Seigle – Murandi v Roche...

In Bruno Seigle – Murandi v Roche Products (Ireland) Limited ADJ 00034384 the Complainant lodged a claim with the Workplace Relations Commission (“WRC”) pursuant to Schedule 2 of the Protected Disclosures Act 2014, on foot of what he claimed was adverse treatment amounting to penalisation due to having made protected disclosures.

Facts

The Complainant in this case commenced employment with the Respondent as a Pharmocovigilance Manager in August 2018.  In May, 2019, he made a protected disclosure concerning marketing materials which were being published and distributed by the Respondent. The disclosure related to a concern that the materials appeared very similar to patient information materials, which are tightly controlled and regulated by law.

It appears to have been accepted by both sides that this amounted to a protected disclosure. It is also common case that the Respondent then self-reported the issue to the Health Products Regulation Authority (“HPRA). However, much of the rest of the facts of the case appear to have been in dispute and the WRC decision is a lengthy detailed decision (see link below).

In summary, the Complainant position was that from May 2019 he made a number of protected disclosures and was then subjected to various acts of penalisation as a result. He asserted that he suffered adverse treatment including (among other things) the loss of a housing benefit he had previously received from the Respondent, an effective demotion (due to another employee being hired at a level more senior to his), micromanagement, being placed on a Performance Improvement Plan (“PIP”), a punitive medical referral and a lower performance review rating which in turn affected his bonus. The Complainant was later alleged to have sent large volumes of emails out of the organisation, mainly to a personal email address but also to what appeared to be family members and he was subjected to a suspension and investigation in relation to this which ultimately led to his dismissal.

The Respondent's position was that it takes any issue relating to regulatory compliance extremely serious. Especially so when it potentially relates to patient safety. The Respondent indicated it was grateful to the Complainant for flagging the issue with the marketing materials. The Respondent claimed it fully supported the Complainant in raising a concern and worked with him to bring it to the attention of the regulator voluntarily. The Respondent claimed that not only was the Complainant not penalised but he was frequently treated in a more favourable way than the Respondent’s policies allowed.

Decision:

The Law

In considering the case the Adjudicator, David James Murphy (“AO”) referred to the test outlined in the Supreme Court case of Baranya v Rosderra Irish Meats Group Limited in respect of deciding whether a statement amounts to a protected disclosure attracting the protections of the Protected Disclosures Act 2014 (the “Act”).

He was also guided by the “but for” test outlined in Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R..  The AO set out the relevant extract of that case which outlines the “but for” test as follows:

the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected Act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influced the decision maker in imposing the impugned detriment.”

On assessing the evidence in light of the relevant legislation and the principles outlined in the above mentioned case law, the AO rejected most of the Complainant’s allegations of penalisation.

The Complainant’s Unsuccessful Penalisation Claims

The AO rejected the Complainants claim that the cessation of the Complainant’s housing benefit amounted to penalisation for having made a protected disclosure. The AO noted the Respondent’s HR department had already confirmed the date the Respondent’s housing benefit was going to end in an email that pre-dated the Complainant even becoming aware of the offending marketing materials that led to his protected disclosure.

In relation to the alleged demotion the AO noted that the new role which had been created above the Complainant’s role had been rolled out over a number of affiliate companies and that generally the Respondent’s structure had changed to become flatter. The AO was satisfied it was clear from the Respondent’s evidence that these changes were unrelated to the Complainant’s protected disclosures.

In respect of the allegations around the Complainant having been penalised through micromanagement, being placed on a PIP and a punitive medical referral, the AO noted that while the Complainant appears to have objected to attempts to manage and oversee his work, these interactions seemed unrelated to any protected disclosure. In particular, the AO noted the Respondent had arranged additional coaching for the Complainant, sought medical advice when the Complainant indicated his health was suffering and paused the PIP process when the Complainant objected to it. The AO determined that all of this supported the Respondent’s case that it was doing its best to work with the Complainant in the context of legitimate performance concerns rather than penalising him.

The AO was critical of a particular performance review process that included an element of marking based on colleague review when the colleagues reviewing the Complainant would have included colleagues who would have been implicated by his protected disclosure. However, this particular portion of the Complainant’s case was out of time as the claim for penalisation was not lodged within six months of the alleged penalisation occurring.

The AO determined that the suspension was not an act of penalisation as it was caused by the Complainant emailing large volumes of information out of the Respondent organisation. The AO felt there was no evidence the suspension was caused by anything else or that the alleged breach of company policy in this regard was just an excuse to suspend the Complainant. Interestingly, the Complainant’s employment was terminated following the investigation regarding the sending of the emails. The Complainant brought an unfair dismissal claim in respect of this which was unsuccessful.

The Complainant’s Successful Penalisation Claim

While the various claims above were unsuccessful one penalisation claim was upheld. This related to communication by the Complainant directly to the HPRA in July 2020 and the subsequent receipt by the Complainant of a “needs improvement” performance rating in November, 2020. The July 2020 HPRA communication was accepted by the AO as being a protected disclosure attracting the protections of the Act. The Complainant’s manager gave evidence that the July 2020 disclosure to the HPRA was taken into account when deciding the Complainant’s 2020 performance review. The 2020 “needs improvement” performance marking in turn affected the Complainant’s 2021 bonus.

While the AO was satisfied that the protected disclosure was not the only factor at play in the “needs improvement” rating, he determined that the performance management system is essentially a grading system and as such the Complainant’s Manager’s reaction to the July 2020 disclosure had to be at least in some respects determinative. The AO determined that as with any marking system, being marked down for any part affected the overall score.

The AO found that this did amount to penalisation under the Act. However, the AO also indicated that the fact the Complainant also had poor communications skills and that this legitimately factored into his performance management score and the reduction in his bonus should be taken into account in the context of remedy.

Ultimately the AO awarded the Complainant €8,000.

In his commentary on redress, the AO criticised the Respondent’s penalisation of the Complainant stating “it is concerning that this occurred in the context of the Respondent’s business as there are few private sector organisations which can have a greater impact on public safety and welfare than a pharmaceutical company”

The AO also noted a criticism of the Complainant for having “advanced various grievances he had with the Respondent as retaliation for having made a protected disclosure, even when that assertion was patently unreasonable.”.

Takeaway for Employers:

While the employee was successful in one aspect of his case, this decision is actually a very helpful decision for employers generally on the topic of protected disclosure related penalisation. Among other things it demonstrates an employer still has a basis to deal with legitimate performance concerns regardless of the employee’s status as a whistleblower.

Link - https://www.workplacerelations.ie/en/cases/2023/november/adj-00034384.html

Authors – Nicola MacCarthy, Laura Killelea