In A Worker v A Massage Therapy Business ADJ00043225 the Complainant lodged a number of complaints with the Workplace Relations Commission (“WRC”), including a penalisation complaint pursuant to the Protected Disclosures Act 2014.The Respondent did not attend the hearing. Due to the sensitivity of the subject matter of the case and the need to protect the identity of the Complainant, the Adjudicator, Michael MacNamee, ordered that the hearing would be conducted in private, and that the identity of the parties would be anonymised in the decision.

Facts: The Complainant was employed by the Respondent as a massage therapist from February 2020 until her dismissal in May 2022. The massage therapy business was managed by a couple, an Irish man and a non-Irish woman.

The Complainant was not provided with a contract of employment by the Respondent, but usually worked approximately 40 hours per week. Rosters were provided on a weekly basis. The Complainant was paid €70 per day in cash. The Complainant submitted that shortly after she commenced employment clients requested additional services of a sexual nature, which she reported to both managers. Following this, she was taken to dinner by them and told that she “could say no”, but that they “could assure her that she wouldn’t get more clients”. Following this, the Complainant felt that she would not be allocated any clients unless she provided sexual services. She felt pressured and as a result she started to provide limited sexual services but was pressured to provide more. She made her managers aware that she did not want to do this and raised concerns about the nature of the work and her health and safety and working conditions. The managers did not address her concerns and continued to pressure her to expand her range of sexual services.

Furthermore, the male manager frequently requested free massages including sexual services. After a while, the Complainant refused to give these massages and supported a co-worker in refusing also. When the managers realised that the Complainant was supporting her co-worker in this way, their attitudes towards her changed significantly. The Complainant claimed that the female manager adopted a rude, dismissive, and derogatory attitude towards her and she was rostered for less work. Furthermore, they introduced a policy which stated that the Complainant would not be paid unless she saw at least four clients during the day. The clients were given on a queue basis which meant that there were multiple occasions when the Complainant went unpaid.

During the Covid-19 pandemic, the business closed for a number of months and the Complainant told the WRC that when she returned, the workplace conditions deteriorated further. Before she was dismissed, the Complainant took two weeks off for holidays and before she was due to return to work, she saw that she was not rostered for the following week. When she queried this, she was informed that there was no work for her and she should find another job. She was dismissed on 17th May 2022. The Respondent did not attend the hearing nor were there any submissions or witnesses at the hearing on their behalf.

Decision: The Complainant’s claims and evidence were uncontested. The Adjudicator noted the serious nature of the Complainant’s protected disclosure which included concerns that wrongdoing (including a potential breach of criminal law by the Respondent) was being carried out, and concerns that her health and safety (and the health and safety of co-workers) had been, was being, or was likely to be endangered.

The Adjudicator stated as follows:

 “This wrongdoing involved a potential breach of the criminal law which criminalises the operation of a brothel, control operation of a brothel, or allowing a brothel to operate from a premises, and the law criminalises persons who control / direct the activities of sex workers, and profit from the provision of sexual services. It is a crime to compel or coerce a person into providing sexual services, and to profit as a result.”

The Adjudicator noted that an employee’s concern regarding the commission of a wrongdoing did not require proof that there was in fact a wrongdoing committed. For clarification, he pointed out that nothing in his decision should be interpreted as making a finding in respect of whether or not a wrongdoing was in fact committed.

He stated as follows:

“I am satisfied that the disclosure made by the Complainant regarding the provision of (and the refusal to continue to provide) sexual services to the Respondent’s clients was ‘relevant information’ in respect of ‘relevant wrongdoings’ within the meaning of those terms in Section 5 and that the same information was disclosed to the Complainant’s employer as envisaged by Section 6 (1) (a). This being so, by operation of Section 5 subsection (8), the disclosure is presumed to be protected within the meaning of the Act and in the absence of any evidence rebutting this presumption I find that the Complainant made a protected disclosure to the Respondent when she objected to the provision of sexual services to the Respondent’s clients.”

In considering the definition of penalisation in section 12(1) of the Protected Disclosures Act 2014, the Adjudicator held that the Complainant was penalised as a result of raising a protected disclosure.

The Adjudicator noted that the 2014 Act provides for an award of compensation that an Adjudicator regards as “just and equitable having regard to all the circumstances”. The Adjudicator described the Complainant as an “exceptionally vulnerable worker”. She was a non-EU national working to support herself while studying and English was not her first language. He noted that she suffered serious penalisation in the form of a change in attitude towards her, marginalisation, a reduction in working hours as well as harassment, intimidation and coercion. The Adjudicator found that the Complainant suffered “very significant emotional distress and humiliation” following the protected disclosure she raised.

The Adjudicator awarded the Complainant the maximum level of award permitted by the Protected Disclosures Act 2014 Act of five years’ gross remuneration, amounting to a sum of €91,000. In doing so, he highlighted that the nature and extent of the penalisation in this case were of “such an egregious nature” as to warrant an award of compensation at the maximum level.

The Complainant was also successful in various other complaints under the Unfair Dismissals Acts; the Terms of Employment (Information) Act; the Minimum Notice and Terms of Employment Act; and the Organisation of Working Time Act.

Takeaway for Employers: This is the first case in which the WRC has awarded the maximum award of compensation of five years’ remuneration for penalisation suffered as a result of making a protected disclosure. The Respondent appears to have completely ignored the Complainant’s concerns and it is clear that the penalisation that she suffered was particularly serious. Nevertheless, this case highlights the potential consequences for an organisation that fails to respond appropriately to an employee’s disclosure. It is worth noting that with effect from 17th December 2023, private sector employers with at least 50 employees are required to establish formal reporting channels and procedures to respond to protected disclosures (the threshold was previously 150 employees). While employers with fewer than 50 employees are not obliged to do the same, they are still required to respond appropriately and reasonably to any protected disclosure that might be raised. Employers need to be particularly careful not to penalise a complainant who has raised a protected disclosure. The potential financial and reputational consequences of doing so can be significant.

Link  – https://www.workplacerelations.ie/en/cases/2023/november/adj-00043225.html

Authors – Susan Coyle, Jenny Wakely, Anne O’Connell

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