Gerard Foy, an agency nurse working in an HSE-run care home for individuals with intellectual disabilities, failed in a retaliation claim for whistleblowing. Mr. Foy reported a colleague, known as Ms A, for a supposed assault on a resident, which entailed pouring water over the individual’s head. His assertion to the Employment Tribunal was that Ms A had aggressed the resident but remained uncertain whether management took any corrective action.
Six months following the incident, in a meeting with Eva Hayes, HSE’s regional nursing director for Intellectual Disability Residential Services, it was conveyed to Mr. Foy that he violated data protection rules by discussing the incident with other staff members. Consequently, he was asked to enrol for a data protection course and extend a written apology to Ms A. His submission during the tribunal hearings was that he agreed to the measures out of fear of losing further work opportunities with HSE.
He further alleged that he was told by the meeting that the incident would have gone unreported if he were an HSE employee. Ms Hayes refuted these claims in her legal submissions stating the issue was raised to Hiqa and managed through standard disciplinary channels, with the confidentiality of the process being underscored.
She mentioned that she comforted Mr. Foy when he reported the incident, stating that his actions were correct which reassured the safety of the patient as the staff member involved was suspended from the shift. Nevertheless, Mr. Foy’s legal representation, led by barrister Donnacha Morgan, argued that this reporting delivered a blow to his professional reputation and potential career advancements.
The situation involved the client being subjected to isolation, harassment, penalty via reduction of work hours, and various disruptions to his regular work schedule, which also included potential department transfers. This was compounded by his unsuccessful application for a permanent role, despite being the most senior suitably qualified candidate on offer. In May 2022, Foy filed grievances against the HSE in accordance with the Protected Disclosures Act 2014 and the Safety, Health and Welfare at Work Act, 2005.
These actions were prompted by two main incidents: his unsuccessful job interview for the staff nurse position in February 2022 and an incident of bullying by another colleague, which according to Mr Foy, was never properly addressed by the management.
Louise Boyle, assigned as the arbitrator to his case, determined that Foy had exceeded the time limit for claiming any alleged detriment he had suffered prior to 27 November 2021, hence she couldn’t consider allegations from before that date. This reduced her authority to address claims such as the accusation that the worker was admonished after reporting abuse during a handover. She was also unable to consider matters such as mandatory apologies to a colleague and other GDPR specific trainings.
Ms Boyle indicated that she was unable to identify a direct connection between Foy’s failure to achieve the staff nurse role and his subsequent protected disclosure. She also echoed this judgement on his complaint regarding loss of work hours. The arbitrator pointed out Mr Foy’s struggle with expressing specifics concerning allegations that he was also denied work in other areas of the service, following his protected disclosure.
In conclusion, Ms Boyle deemed that the employee failed to conclusively prove that any retaliation was associated with protected acts or disclosures during the time period under her review, and as such dismissed both of his complaints.