Bus Éireann Ordered to Pay €40,000: Why Employers Must Keep Health & Safety Complaints Separate from Other HR Decisions
An employee does not have to be dismissed for an employer to face a substantial penalisation claim.
A recent Workplace Relations Commission decision involving Bus Éireann demonstrates how an employer can create significant exposure where an employee suffers a disadvantage after raising workplace health and safety concerns.
George Moloney, a long-serving Bus Éireann employee, was awarded €40,000 after the WRC found that his application for retirement on ill-health grounds had been improperly linked to ongoing personal injury proceedings concerning an alleged workplace injury.
The WRC also directed Bus Éireann to process his application for medical retirement without regard to the existence of the civil proceedings.
For employers, the central lesson is that once an employee engages statutory health and safety protections, subsequent HR decisions should have their own clear, independent and documented justification.
WRC Case Reference
Adjudication Reference: ADJ-00059707
Complaint Reference: CA-00072389-001
Parties: George Moloney v Bus Éireann
Legislation: Safety, Health and Welfare at Work Act 2005
The full decision can be located through the Workplace Relations Commission decisions database using reference ADJ-00059707.
More than 40 years of service
Mr Moloney commenced employment with Bus Éireann in September 1984 as an apprentice coachbuilder and remained employed at the time of the WRC proceedings.
His work involved the refurbishment of buses and trailers and was described as physically demanding.
In particular, his duties involved extensive use of vibrating and pneumatic equipment, including air saws and pneumatic knives.
Following medical investigations in 2023, Mr Moloney was diagnosed with a hand condition which he maintained was attributable to prolonged exposure to vibrating tools during his employment.
Evidence before the WRC included an occupational health memorandum recording that he remained unfit for work involving vibrating equipment and that the condition was likely to be long term.
Alternative work or ill-health retirement was considered
According to Mr Moloney's evidence, the initial position was that the company would either seek a suitable alternative role for him or consider retirement on ill-health grounds.
A potential move to driving was explored, but he said he was considered medically unsuitable for that role because of his hand condition.
His solicitors subsequently wrote to Bus Éireann in August 2023 alleging that requiring him to use vibrating tools over a prolonged period had amounted to an unsafe system of work.
That health and safety step became crucial to the later penalisation complaint.
The medical retirement process became linked to the personal injury case
Mr Moloney maintained that after the health and safety issue was formally raised, there was little meaningful progress concerning his future position.
He subsequently pursued the matter through Bus Éireann's internal grievance process.
The WRC heard evidence that a decision concerning ill-health retirement would be considered in tandem with the management of his personal injury proceedings.
Bus Éireann accepted that Mr Moloney had been informed that the medical retirement application would not progress independently of the personal injury litigation.
The WRC ultimately found that preventing access to the normal ill-health retirement process because of the civil claim amounted to penalisation.
What is penalisation under health and safety law?
Section 27 of the Safety, Health and Welfare at Work Act 2005 provides specific protection to employees against penalisation for carrying out certain acts connected with workplace health, safety and welfare.
Penalisation is broader than dismissal.
It can include detrimental treatment affecting an employee's employment, such as:
- Suspension, lay-off or dismissal;
- Demotion or loss of promotion opportunities;
- Changes to duties or location;
- Reduction in wages;
- Changes to working hours;
- Disciplinary penalties;
- Financial penalties; and
- Coercion or intimidation.
Employers should therefore avoid thinking of penalisation solely in terms of “Was the employee fired?”
A disadvantage in another employment-related process can also potentially become relevant.
Raising the health and safety concern was protected
The WRC concluded that the correspondence sent on Mr Moloney's behalf concerning the alleged unsafe system of work constituted a protected act for the purposes of the health and safety legislation.
The issue then became whether there was a causal relationship between that protected act and the disadvantage he later suffered.
The adjudicator found that there was.
The employer decision being challenged did not need to be a dismissal. The relevant detriment was being prevented from progressing through the ordinary ill-health retirement process.
A civil claim and an employment law process are not necessarily the same dispute
Bus Éireann argued that the WRC should not determine the complaint because there were ongoing High Court personal injury proceedings concerning the alleged workplace injury.
Mr Moloney's representatives argued that the two proceedings concerned different legal questions.
The High Court case concerned liability for the alleged personal injury.
The WRC case concerned whether Mr Moloney had been penalised in his employment contrary to the Safety, Health and Welfare at Work Act.
The WRC accepted that these were distinct causes of action and proceeded to determine the penalisation complaint.
Employers should therefore be cautious about assuming that the existence of civil litigation automatically permits an internal employment process to be suspended or made conditional upon the outcome of that litigation.
The employee was not automatically entitled to medical retirement
This distinction is particularly important.
The WRC did not conclude that Mr Moloney was necessarily entitled to be granted ill-health retirement.
Instead, the problem was that he had been denied the opportunity to have his application considered under the employer's own normal procedure.
There is a significant difference between refusing an application after a fair assessment and preventing the employee from accessing the assessment because they have taken another legally protected step.
Employers need to manage parallel processes carefully
Employers frequently find themselves dealing with several related issues involving the same employee at the same time.
For example, an employee may simultaneously have:
- A workplace health and safety complaint;
- An occupational health assessment;
- A grievance;
- A personal injury claim;
- A request for reasonable accommodation;
- A redeployment process;
- A long-term absence process; or
- An application for ill-health retirement.
Those processes may involve overlapping facts.
But an employer should still ask whether there is a proper legal and procedural basis for making the outcome of one process dependent upon another.
Related does not necessarily mean legally dependent.
Be able to explain why the employment decision was made
Penalisation cases often place considerable importance on the relationship between the protected act and the treatment complained of.
Employers should therefore ensure that decisions taken after an employee raises a health and safety concern can be independently explained.
The written record should make clear:
- What decision was made;
- Who made the decision;
- When it was made;
- What policy or procedure applied;
- What evidence was considered;
- Why the decision was necessary; and
- Why it was unrelated to the employee exercising a protected right.
If the reason for a decision cannot be clearly separated from the employee's health and safety complaint, the employer should identify that risk before acting.
The remedy went beyond compensation
The WRC upheld Mr Moloney's complaint and directed Bus Éireann to pay €40,000 in compensation.
But the remedy did not end with a financial award.
Bus Éireann was also directed to process his application for retirement on medical grounds without regard to the existence of the civil proceedings, within a specified period.
Employment law exposure is not always limited to compensation. The WRC may also require an employer to take a specified course of action.
What should employers take from this decision?
If an employee raises a workplace health and safety issue, consider:
- Does the complaint engage protection under the 2005 Act?
- What other employment processes involving this employee are ongoing?
- Are those processes genuinely dependent on each other?
- Could the employee suffer a detriment because they raised the safety issue?
- Is an internal process being delayed, blocked or altered?
- What objective reason supports that decision?
- Is the reason recorded contemporaneously?
- Are occupational health recommendations being followed up?
- Are grievance and appeal procedures progressing properly?
- Would the same decision have been taken if the employee had never raised the health and safety concern?
The wider lesson for employers
This case does not mean an employer must grant an employee ill-health retirement simply because that employee has raised a workplace safety concern or brought personal injury proceedings.
Employers remain entitled to apply their normal eligibility criteria and reach a decision on the merits.
The difficulty arises where exercising a protected health and safety right results in an employee being denied access to a process or subjected to a disadvantage they would otherwise not have experienced.
An employee raising a health and safety concern should not change the rules of another HR process.
Where several employment, occupational health and legal processes are running simultaneously, employers should keep each process clearly documented and ensure that every decision has an independent, legitimate and defensible basis.
This article is for general information purposes only and does not constitute legal advice. Specific legal advice should be obtained in relation to individual circumstances.
