An employers most solemn duty is to provide a safe place of work. Arguably all employment protection law is a manifestation of this responsibility.
Section 8 of the Safety, Health and Welfare at Work Act 2005 codifies this duty and refers to the management of work activities to prevent improper conduct or behaviours likely to put the safety, health and welfare at work of employees at risk. The Safety, Health and Welfare at Work Act was implemented to protect workers, put responsibility on employers and replace outdated law. It replaced the previous act of 1989. It aims to prevent workplace accidents and illnesses. It ensures employers implement necessary safety measures as well as conduct risk assessments.
Acts or Omissions
Section 27 relates to protection of employees against dismissal and penalisation.
Penalisation may include any
- Act or
- Omission
An overt act of penalisation may be obvious for example; A demotion, redundancy or dismissal. However, what is less obvious and no less impactful is omission of an employer to take steps to prevent improper conduct or behaviours likely to put the safety, health and welfare at work of employees at risk.
- The employee must prove there was a protected act e.g. making a complaint about health and safety.
- The employee must prove they have suffered detriment due to making the complaint. This may include for example, being dismissed for raising a health and safety issue similarly to Paul O’Neill v Toni and Guy Blackrock Ltd (2010).
- The employee must prove the detriment suffered was a result of the protected act. There must be a causal link between the detriment caused and the complaint. The test for this is the ‘but for’ test.
Acts of Omission
Section 27 of the Act outlines “penalisation” as any act or omission by the employer that affects the employee’s detriment, with respect to any term/condition of their employment. This also includes anyone acting on behalf of the employer. It protects employees from being penalised for exercising their rights. Employees may bring complaints regarding penalisation to the WRC.
It covers acts leading to the detriment of employee’s welfare as well as the failure to act with preventive measures (omissions).
It is in this author’s view an underdeveloped area of law in that in practice penalisation is normally much more subtle than overt and direct acts of penalisation but may in fact be acts of omission that lead to the employee being subjected over a long period of time to a hostile and uncomfortable workplace which may include;
- Not activating bullying or harassment procedures
- Failing to investigate a matter in good time
- Restating the grievance and dealing with the adjusted grievance instead of the actual grievance raised.
- Utilising delay to allow the hostile work environment and poor treatment to continue
- Failing to carry out appropriate workplace assessments or pregnancy risk assessments.
Accrued Service
In contrast to redress for unfair dismissal under the 1977 Act, the 2005 Act imposes no minimum service time of 12 months, or any time limit.Potential Criminal Penalties
Breaches of the health and safety acts are potential criminal offences. Section 77 outlines all the offences and section 78 the penalties.
Under section 78 a person is liable;
- on summary conviction to a fine not exceeding €3,000 or imprisonment for a term under 6 months or both, or
- On conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term under 2 years or both.
Appropriate Redress in the WRC
Under Section 28 a complaint can be referred to the WRC. The Adjudication officer may direct payment of such compensation as the Adjudicator considers just and equitable in all the circumstances.
The WRC has held these breaches are serious obligations but there is a wide variance in awards and approaches between various decision makers ;
- In Darrell Donnelly https://www.workplacerelations.ie/en/cases/2024/february/adj-00043107.html Adjudication Officer Ewa Sobanska in making an award of held that Section 27 of the Safety Health and Welfare at Work Act, 2005 prohibits acts of penalisation (as defined in section 27(2)) in response to the employee’s conduct as defined in section 27(3) The Complainant was subjected to change of location of place of work and transfer of duties and he was suspended and ultimately forced to resign and seek other employment for making complaints about the ongoing public and employee health issue with mouse infestation and the failure of the company to resolve the problem or deal honestly with the public health authorities. Penalisation is a very serious matter which should be marked with a substantial award of compensation. The officer was satisfied that the amount of compensation which was just and equitable having regard to the circumstances was €30,000. The Complainants gross pay was €3,166 per month in that case.
- In Gilciene Neves https://workplacerelations.ie/en/cases/2026/adj-00061617.html Adjudicator Seamus Clinton awarded €2,500 to a self-represented individual.
- In https://workplacerelations.ie/en/cases/2025/november/adj-00054834.html Adjudicator Roger McGrath awarded €15,000 to Cian Donohoe -v- Cavan County Council where the complainant submitted a letter invoking a formal grievance referring to a continuum of negative treatment.
- In https://workplacerelations.ie/en/cases/2025/november/adj-00053592.html Adjudicator Elizabeth Spelman awarded €114.30 9 hours remuneration for financial loss suffered.
- In https://workplacerelations.ie/en/cases/2025/october/adj-00046085.html Adjudicator Brian Dalton awarded 6 months salary where a dismissal occurred for having made a safety complaint.
- In https://workplacerelations.ie/en/cases/2025/august/adj-00047114.html Adjudicator Penelope McGrath awarded €7,500 for a summary dismissal as retaliation or penalisation for having made a complaint to the HAS to a part time worker on minimum wage.
Conclusion
The law in this area is not well settled, and a comprehensive updated judgment would be of use to practitioners as the reliance on Tony and Guy as the seminal case did not rely on the Act for guidance on compensation.
