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QUESTION: Nadine is a senior administrator at Borsham College (‘BC’) where she has worked for the past 10 years. Nadine has been put under a lot of extra pressure at work as her colleague, another senior administrator, has been absent on maternity leave. The college has not employed a temporary replacement so Nadine has almost double her normal workload. After two months of working very long hours under a great deal of pressure she is signed off sick by her doctor on the grounds of stress. Before being signed off sick she noticed that the college had not been completing the proper passport checks for new lecturers. She also suspects that many lecturers are being hired by the college despite lacking the correct immigration status as required by the relevant legislation and that they are being paid cash in hand. Nadine raised these matters with top management through the relevant procedure but they did not respond to her concerns. Nadine then reported the college’s practices to a local radio journalist who broadcast the story three weeks later while Nadine was on sick leave. The day before Nadine was due to return to work she received a letter from her boss at the college stating that she was being dismissed with immediate effect.
Advise Nadine of her rights under Part IV A of the Employment Rights Act 1996
The matter relates to the rights of an employee when making disclosures that touch on their employment and employers to third parties. The conditions and factors that offers disclosures the status of protected disclosures are discussed. The rights that the employee enjoys under these provisions are also examined critically to determine the action, if any, that an employer can take against such employees.
- Did the disclosures that Nadine make have the status of qualified and protected disclosures?
- Do Nadine’s employer have a legal ground to take any disciplinary action, such as dismissal from work, against Nadine for making the disclosure?
- What rights does Nadine have under the employment laws?
The law asserts that a protected disclosure means a qualifying disclosure that an employee makes. It goes ahead and clarifies that a qualifying disclosure is the release of any information by an employee who reasonably believes that the release of such information is done in the interest of the public at large. This qualifying disclosure should show that a criminal offence has been, is been or is going to be conducted. Secondly, it may show that a person has failed to comply with the required regulations and legal obligation or a miscarriage of justice is likely to happen. In addition, a qualifying disclosure may show that a person’s health or the environment at large is being endangered. The law further clarifies a disclosure of information will not be regarded as a qualifying disclosure if the person who is releasing the information commits an offence in the processing of making the release.
The law requires that such disclosures be made to the employee or other bodies that are designated by the law. Contrary to this, according to the judges in Baranya v Rosderra Irish Meats Group Ltd  IEHC 56, these disclosures will not be regarded as qualifying disclosures. However, there are situations in which the law allows these disclosures to be made to other bodies or persons such as the media and still be regarded as qualifying disclosures. The law first requires that such disclosures should be have a substantial weight of truth. The employee making the disclosure should also not be doing so for his own personal gains as stated in the case of Hosford v Department of Employment Affairs and Social Protection (2020) IEHC 138. Making the disclosure should also be the most reasonable thing for the employee to do in the circumstance. For a disclosure made in this circumstances to gain the status of a qualifying disclosure, the employee making it should reasonably believe that making this disclosure to his employer will expose him to detriment. The employee should also reasonably believe that if the disclosure is made to his employer, the employer is likely to conceal or alter key evidence. The disclosure will also be regarded as a qualifying disclosure under this law if the employee has previously made the disclosure to the employer. In this case, it is also important to note another addition to this law that relates to the reasonableness of the disclosure. The law asserts that a disclosure will be regarded as reasonable and hence a qualifying disclosure if the employee first complied with any reporting procedure authorized by employer. As stated in Cullen v Kilternan Cemetery Park Limited  IECC 2 an employee cannot be punished with disciplinary actions such as dismissal for making qualified disclosures.
Nadine made a disclosure of information to the media. This disclosure has the status of a qualifying and hence a protected disclosure under the law. First, Nadine made this disclosure having the interest of the public at large. The information touched on the management of the institution he worked for breaching the immigration rules. This touched on the public interest because allowing people to enter and work in the country without the proper vetting may allow the entry of certain characters that pose a danger to the public in general. This is a topical issue especially in this era of terrorism. In addition, this information that Nadine released to the media show that a criminal offence had been and was continuing to be done contrary to the provisions of the immigration laws. In addition, Nadine is neither in a privileged position nor is she releasing classified information hence obligated by law not to release. She is committing no offence in making the disclosure.
Nadine has nothing to gain from making the disclosures. She is not doing so for her own personal gains. In this circumstance, making the disclosures to the media was the most reasonable thing for Nadine to do. This is because Nadine had previously disclosed the information to the management of the institution according to the set internal protocols and they failed to make any response. In fact, there are grounds to believe that disclosing more information to the management with regard to this matter is likely to detriment Nadine. This fear has already come to materialize and she has received a letter of dismissal whose timing right after the information was released to the media is highly suspicious. It seems as a punishment for her disclosures. There is therefore the fear that the employer is likely to tamper with the information and the evidence if Nadine makes more disclosures to them. These disclosures made to the media are therefore within the definition of qualified and protected disclosures. Nadine is protected by the law in making this disclosure.
The disclosures that Nadine made fall within the definition of qualified and protected disclosures. She is therefore protected by the employment laws against any disciplinary action, such as dismissal from work that the employer may want to take against her for making them
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