Disciplining an Employee After a Safety Complaint? Labour Court Awards €33,000 in Penalisation Case
A recent Labour Court decision provides an important warning for employers dealing with employees who raise health and safety concerns.
The National Council for Special Education was ordered to pay €33,000 to an employee after the Labour Court found in her favour in two penalisation complaints linked to Covid-era workplace safety concerns.
The employee had argued that she should not have been required to organise in-person school visits during the pandemic because she believed those instructions were inconsistent with the safety rules and restrictions applying at the time.
For employers, the case is not simply about Covid-era decision-making. It raises wider issues which remain highly relevant today: protected safety complaints, disciplinary action, flawed procedure, prejudgment and the importance of being able to prove that disciplinary measures were genuinely unrelated to a protected complaint.
If an employee raises a health and safety concern, any subsequent disciplinary action may come under very close scrutiny.
Background to the case
The employee, a long-serving civil servant employed by the NCSE, raised concerns about being instructed to arrange in-person school visits during the Covid-19 pandemic.
She maintained that the instruction was inconsistent with the restrictions and safety obligations then applying in workplaces.
The employer, however, contended that it was entitled to discipline her for failing to comply with management instructions.
What followed was a lengthy disciplinary process involving warnings, internal appeals and the appointment of external professionals.
The Labour Court ultimately found in the employee’s favour in two of the four appeals and awarded €16,500 in each, giving total compensation of €33,000.
Raising health and safety concerns can be a protected act
One of the clearest lessons from the case is that where an employee raises a concern about workplace health and safety, that can trigger statutory protection against penalisation.
Employers may strongly disagree with the employee’s position.
They may believe the employee has misunderstood the rules, adopted an overly cautious interpretation, or is refusing to carry out a normal part of the role.
Even so, the fact that the employer disagrees does not automatically remove the legal protection attaching to a safety complaint.
A disagreement about whether the employee was right does not eliminate the risk that a later warning, sanction or detriment may be viewed as penalisation.
A disciplinary process can become a penalisation case
Employers often view a matter through a disciplinary lens:
- The employee was instructed to do something;
- The employee did not comply;
- The employer therefore commenced a disciplinary process.
But where the instruction complained of is bound up with a safety concern raised by the employee, the legal analysis can become more complicated.
The Labour Court’s reasoning emphasises the need for employers to establish that any action taken was genuinely unrelated to the employee’s protected health and safety complaint.
In other words, the employer must be able to show that it disciplined for misconduct or non-compliance — not because the employee raised the safety issue.
Fair procedures still matter — even in a complex internal process
Another major theme in the case was procedure.
The disciplinary process appears to have become lengthy and layered, with multiple internal appeals and external involvement.
The Labour Court noted that one external appeals officer recommended the process be restarted because there had not been a proper investigation at the outset.
A later external appeal also succeeded on the basis that one of the managers involved had prejudged the outcome.
Even where an employer is convinced it is entitled to direct the employee to perform certain duties, a flawed investigation or a prejudged process can significantly weaken the employer’s position.
Prejudgment is especially dangerous
The Labour Court was critical of the handling of the appeal outcome and of the wider process.
Where a manager appears to have made up their mind in advance, the fairness and credibility of the process can quickly become compromised.
That is particularly risky in disciplinary cases that overlap with:
- Protected disclosures;
- Health and safety complaints;
- Grievances;
- Whistleblowing concerns; or
- Other legally protected conduct.
Once a tribunal concludes that a decision-maker may have prejudged the matter, it becomes much harder for the employer to persuade the tribunal that the sanction was objectively justified and unrelated to the protected complaint.
If you say the action was unrelated, you need evidence
A particularly important part of the Labour Court’s reasoning was its observation that the motives and thought processes of the relevant decision-makers were critical.
The Court noted that the employer had not called witnesses who might have explained why the action taken against the employee was unrelated to the safety complaints she had raised.
That is a practical and important lesson for employers.
- Who made the decision?
- Why was it made?
- What was the genuine reason?
- What documentation supports that position?
- Which witnesses can explain it clearly?
Where motive is central to the claim, witness evidence can be crucial.
Rejecting an appeal recommendation can carry real risk
Another striking feature of the case was that an external appeal found the appeal should succeed, yet the employer rejected that recommendation on the basis that it was not binding under the relevant code.
The Labour Court described that decision as “extraordinary” in circumstances where the findings suggested the process itself had been flawed.
Employers may, depending on the framework applying to them, technically retain discretion regarding recommendations made by an external reviewer or appeal officer.
However, where that recommendation identifies a serious procedural flaw, departing from it without a very clear and defensible basis may significantly increase exposure.
A recommendation may not always be formally binding — but ignoring it may still be very difficult to defend.
Employers should separate the safety issue from the conduct issue
Cases like this often become difficult because two issues are running at the same time:
- The employee says they are acting out of concern for health and safety;
- The employer says the employee is failing to comply with a lawful and reasonable instruction.
Where those issues are not carefully separated, the risk increases that the disciplinary process will be seen as retaliation for the safety complaint.
Employers in similar situations should consider:
- What exactly is the employee’s safety concern?
- Has it been properly acknowledged and investigated?
- What rules, guidance or risk assessments apply?
- Is the instruction clearly lawful and reasonable?
- Has the employee been given a proper opportunity to explain their position?
- Are the managers involved sufficiently objective?
- Would independent HR or external support be sensible?
- Can the employer prove that any disciplinary action is unrelated to the protected complaint?
The award
The Labour Court upheld two of the employee’s appeals and awarded compensation of €16,500 in each case.
€33,000
Total compensation awarded across two successful penalisation complaints.
The other two appeals were rejected, which is also a useful reminder that tribunals may distinguish between different stages or aspects of what can become a larger and more complex dispute.
The wider lesson for employers
This case may have arisen in the unusual context of Covid-era workplace restrictions, but its wider lessons remain current.
Employers should take particular care where a disciplinary issue overlaps with a complaint about safety, legal compliance or another protected matter.
If an employee raises a safety concern, the employer must be able to show that any later disciplinary action was based on a fair, objective and properly evidenced process — not on the fact that the concern was raised.
Proper investigation, careful documentation, objective decision-making and appropriate witness evidence can all be critical in defending this type of claim.
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.
