Transparency International recently voiced concerns over the growing increase of retaliations against healthcare professionals “for speaking out about the realities of COVID-19”. There have been many examples reported in the media globally, including the case of a doctor in the United States whose employment was terminated after he had raised concerns over both the safety equipment provided and the safety of staff members generally. The doctor’s work shift was removed and when this was queried, he was informed that his employment had been “terminated”.
There have also been further reports of a nurse whose employment was terminated after she had raised concerns over the facemask provided by a hospital. The nurse who believed her safety was being compromised opted to wear a facemask which she believed was safer but which differed from the facemasks provided by the hospital.
Healthcare professionals both here and abroad will continue to raise concerns over COVID-19 related risks. Transparency International Ireland has stated that “Irish workers will raise concerns about compliance with Government public health measures too. It is therefore important that they be able to do so quickly and without fear of negative consequences”.
Legal Protection and Healthcare Workers: What is Penalisation?
There are protections afforded to workers within the healthcare sector both under the Protected Disclosures Act 2014 and the Health Act 2004 as amended. In the event that a worker is penalised for making a protected disclosure, it is open to them to submit a claim under both acts. However, the Protected Disclosures Act 2014 provides a wider range of protection for workers and unlike the Health Act 2004 there is no requirement that a protected disclosure is made in “good faith”. The Protected Disclosures Act protects a worker from acts constituting penalisation for having made a protected disclosure, which includes protection from the following:
- Suspension, lay-off or dismissal,
- Demotion or loss of opportunity for promotion,
- Transfer of duties, change of location of place of work, reduction in wages or change in working hours,
- The imposition or administering of any discipline, reprimand or other penalty (including a financial penalty)
- Unfair treatment,
- Coercion, intimidation or harassment,
- Discrimination, disadvantage or unfair treatment,
- Injury, damage or loss, and
- Threat of reprisal.
What is a Protected Disclosure?
A Protected Disclosure under the Protected Disclosure Act 2014 is defined as relevant information that in the reasonable belief of the worker, “tends to show one or more relevant wrongdoings” and that the relevant information came to the worker’s attention in the course of his or her employment. In the context of health professionals, the case of A Psychiatrist v A Health Service Provider ADJ-00017774 illustrates how a protected disclosure is made in a health care setting. In this case, the complainant raised a protected disclosure over the care of patients within a health care facility. The complainant was concerned over the clinical practices of one colleague in particular. In response to the complainant’s protected disclosure the colleague who was the subject of the protected disclosure and the principle cause of concern raised a dignity at work complaint alleging bullying. The complainant submitted that the allegations of bullying constituted an act of retaliation in response to his protected disclosure. The respondent health care provider both delayed and neglected to adequately investigate the complainant’s protected disclosure, instead focusing their attention on the allegations of bullying made by the subject of the protected disclosure.
The adjudicator noted that the complainant’s protected disclosure came within “the ambit of 5 (2) (d) of the Protected Disclosures Act” which states that a relevant wrongdoing for the purposes of the Protected Disclosures Act 2014 includes circumstances where “the health and safety of any individual has been, is being or is likely to be endangered”. The adjudicator noted that the handling of the complainant’s protected disclosure was such as to constitute penalisation by way of “unfair treatment” and awarded the complainant financial compensation.
The Workplace Relations Commission has recently published their annual report for the year 2019. Complaints submitted to the Workplace Relations Commission under the Protected Disclosure legislation in 2019 reflected an increases of 165% from the previous year. The increase in complaints submitted under the Protected Disclosures Act sets a reassuring tone for workers who wish to submit a complaint and recognises the importance of “safeguarding the public good” by exposing wrongdoing in the workplace.Transparency International Ireland has recommended that workplaces should make it clear that “anyone threatening or attempting to silence a worker that raises a COVID-19 related concern (and/or makes a protected disclosure) may face disciplinary action for doing so”.
Anyone wishing to read the above decision from the Workplace Relations Commission may do so by accessing www.workplacerelations.ie. You may access Transparency International Ireland’s guidance for Irish employers during the COVID-19 pandemic by visiting www.transparency.ie. Should you wish to discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]. Telephone and Skype consultations are available by appointment.