Penalisation: the forgotten health & safety risk

First published: October 2nd 2023
Last updated: October 2nd 2023

One health & safety risk that employers often overlook is the prohibition on penalising staff who raise health & safety concerns in relation to their work.

As well as complying with their obligations to provide a safe place of work for staff, employers also need to bear in mind that employees must not be penalised for raising health & safety concerns in relation to their work.

In this post, we take a look at this area of health & safety law and provide general advice for dealing with an employee who raises concerns in relation to workplace health & safety….

What is penalisation?

Penalisation of an employee can include suspending, demoting, dismissing an employee or reducing their wages. Other forms of penalisation could involve coercion or intimidation of staff who raise health & safety concerns.

If an employee raises concerns, it’s important to address them and to ensure that you don’t do anything that could be considered retaliation.

If the employee suffers a detriment after raising a concern, they may be entitled to make a claim for penalisation.

No cap on compensation for employees who raise health & safety concerns

From an employer’s point of view, it’s important to note that there is also no limit on the level of compensation an employee might receive if they make a successful complaint of penalisation under health & safety legislation.

This means penalisation is a huge risk for employers and one that is often overlooked.

How employees prove penalisation

If your business receives a claim of penalisation under Irish health & safety legislation, you should note that the employee must be able to prove that that they have been penalised.

The Labour Court examined the proofs employees need to establish in the case of Paul O’Neill v Toni and Guy Blackrock Ltd.

In its ruling, the Labour Court found that employees must establish three key proofs to make a successful claim of penalisation:

• the employee must prove that the complaint relates to a health & safety issue in the workplace
• the employee must prove that they suffered some detriment in response to their complaint concerning a workplace health & safety issue, and
• the employee must prove that the detriment complained of was connected to the complaint and not for some other reason.

This is sometimes known as the ‘but for’ test. The employee would not have suffered penalisation ‘but for’ the complaint they made in relation to workplace health & safety.

Protect your workplace against penalisation claims

A good health & safety management system should take employee recommendations around workplace hazards into consideration.

And if an employee raises an issue or complaint, you need to be mindful that your business could be exposed to a penalisation claim if the employee subsequently suffers a detriment.

The severe financial and reputational consequences of a successful claim makes penalisation a serious risk for employers to protect against.

To reduce your business’s exposure to penalisation claims, contact one of our Health & Safety experts today on 1800 719 216 to discuss health & safety management systems, training or any aspect of health & safety compliance.