In An Employee v A Drugs Company, the highest ever award was granted for penalisation under the Safety, Health and Welfare at Work Act 2005. In this case, a manager was dismissed for lodging a grievance regarding bullying and workplace safety against the principal employer.

Two weeks after lodging the grievance, the complainant’s employment was terminated. In awarding the complainant €160,000 in compensation, the Adjudication Officer held that the employer’s version of events that the employee had turned into the “employee from hell” was not credible taking into account that the complainant had been with the company for 30 years.

This case serves as a warning to employers that they must not penalise or threaten to penalise an employee who is exercising rights or performing health and safety duties. Under the Act, it may be considered that an employer has penalised the employee if the employee suffers a detriment to his or her contract of employment as a direct result of: 

• acting in compliance with the relevant statutory provisions (this only extends as far as the rights and provisions of safety, health and welfare at work legislation and does not extend to any other statutory or civil rights or provisions);
• performing any duty or exercising any right under the relevant statutory provisions;
• making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work;
• giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions;
• being a safety representative or an employee designated under Section 11 or appointed under Section 18 to perform functions under this Act; or
• in circumstances of danger, which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

Where an employee exercises one of the above rights under the 2005 Act, it is important that an employer responds in an appropriate manner. This would entail discussing any health and safety related concern and, where there is no risk or the risk is controlled, allowing employees to see risk assessments and other documentation that support this conclusion.

For further information on health and safety, you can consult the SFA guideline or contact Ciara McGuone on ciara.mcguone@sfa.ie or 01 605 1668.