Workplace Relations Commission: Psychiatrist awarded €4,000 for being penalised after making a protected disclosure
A consultant psychiatrist has been awarded €4,000 after it was found that he was penalised for making a protected disclosure about the clinical performance of a colleague.
Ordering the employer to pay compensation for penalising the complainant, Adjudication Officer Kevin Baneham found that the employer did not comply with its own policy in handling the protected disclosure, and obviously delayed the investigation to the detriment of the complainant.
Protected disclosure and dignity at work complaints
In March 2016, the complainant, a consultant psychiatrist, made a protected disclosure raising patient care issues about the clinical practice of a colleague, a clinical psychologist. The complainant said that the clinical performance of the clinical psychologist endangered service users. The complainant also made a dignity at work complaint, and made further protected disclosures in 2016.
The clinical psychologist then made a dignity at work complaint against the complainant.
The respondent, a health service provider, said that a preliminary screening determined that the dignity at work complaint made against the complainant should go forward for investigation. The complainant declined to engage with this process, arguing that his protected disclosure should be dealt with first.
The respondent said that it also sought to progress its investigation into the complainant’s protected disclosures, and decided to deal with the issues raised in the complainant’s dignity at work complaint within the broader protected disclosures investigation. However, the complainant refused to agree the terms of reference of this investigation which delayed the process.
The complainant said he was “at a loss at the conflation of his protected disclosure and his dignity at work complaint”, that the dignity at work complaint made against him was “retaliatory” and was addressed without his protected disclosure being addressed. The complainant argued that the respondent was using the dignity at work complaint against him, and was relying on information disclosed in his protected disclosure. He said there was also risk of contamination between the two processes.
He said that the respondent should not have used his protected disclosures as the basis of a bullying complaint against him, and that the respondent was slow to clarify the separation between the two investigations.
The complainant said that the two dignity at work complaints were “dealt with differently”, that he was penalised by “not being treated the same as others”, and by the delay in initiating an investigation into his protected disclosure. The complainant said it was unconscionable to delay the investigation of his protected disclosure, that the respondent “should have allowed the first process to finish prior to completing the dignity at work process” and that there should be procedures in place to prevent the two processes interfering with each other.
The respondent denied that it penalised the complainant for making protected disclosures or that he had suffered any detriment.
The complainant said that he ended his employment with the respondent because of a “bigger issue” linked to the work environment and patient care.
Workplace Relations Commission
The complainant sought adjudication under Schedule 2 of the Protected Disclosures Act 2014.
Adjudication Officer Baneham said the complainant’s protected disclosure fell within the ambit of Section 5(3)(d) of the Protected Disclosures Act 2014, where the “health and safety of any individual has been, is being or is likely to be endangered”. He added that it was beyond the scope of his adjudication to consider the merits of the protected disclosure, or what the clinical psychologist said in reply.
The adjudication officer set out the Code of Practice on Protected Disclosures and the respondent’s own Protected Disclosure Policy. He said that the respondent did not comply with its own policy in handling the complainant’s protected disclosures, and obviously delayed the investigation into them “for many months”. He said the delay “contributed to circumstances where contested questions of fact overlap between the complainant’s protected disclosure and the psychologist’s dignity at work complaint”.
Adjudication Officer Baneham also said it was “problematic” that the dignity at work process “proposed to make findings of fact in relation to the content of the protected disclosure”. He said this raised the possible scenario where the clinical psychologist’s dignity at work complaint and the complainant’s protected disclosure were both upheld – i.e. that the complainant’s allegations were “erroneous”, but separately that they were true. An allegation cannot be true and untrue at the same time.
He said the difficulty in this case was that the dignity at work process was to determine whether the substance of the allegations set out in the protected disclosure was true or not, and that was problematic as it undermined the treatment and investigation of protected disclosures via the respondent’s Protected Disclosure Policy.
Finding that the protected disclosure being left in a stalled position for so long while seeking to address key factual conflicts via another process represented detriment the complainant, Adjudication Officer Baneham said the complaint of penalisation pursuant to the Protected Disclosures Act 2014 was well founded and ordered the respondent to:
- Implement its protected disclosures policy in addressing the complainant’s protected disclosures;
- Resolve questions of fact raised in the complainant’s disclosure within the protected disclosure process;
- Pay to the complainant compensation of €4,000.