Complainant

Respondent

Parties

Bruno  Seigle - Murandi

Roche Products (Ireland) Limited

Representatives

Mark Connaughton SC instructed by Terence McCrann of McCann Fitzgerald

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00045183-001

14/07/2021

The Complainant is an experienced healthcare professional with an extensive background in pharmacy.

During the course of his career he obtained a doctorate in pharmacy and specialised in pharmacovigilance, which is the science relating to the detection, assessment, understanding and prevention of adverse effects in medicine.

In August 2018, he began working for the Respondent as their Pharmacovigilance Manager. He was dismissed on 4 March 2022.

In May 2019, the Complainant discovered and reported an issue regarding certain medical marketing materials which were being published and distributed by the Respondent. These materials appeared very similar to patient information materials, which are tightly controlled and regulated by law. In some cases, these marketing materials appeared to the Complainant to be less explicit about patient risks than the approved patient information material was. The risk is that because of the similarity between the two documents, a patient or healthcare professional could refer to the marketing materials when they think they are reviewing the approved "risk minimisation” materials.

It is common case that the Complainant detected the above materials and that they were a serious issue. The Respondent, with the assistance of the Complainant, contacted the Health Products Regulatory Authority (“HPRA”) and a HRPA inspection was conducted in the summer of 2019. Ultimately, the materials were recalled and a wider review conducted.

Almost everything else in this case is in dispute.

While it was the HPRA’s decision whether or not to recall the materials, the Respondent was required to take a view on the issue from the outset. Initially, the Respondent advised the HRPA that it would cease distribution, contact the affected healthcare professionals and ask them to destroy any remaining copies and that a recall was unnecessary. 

The Complainant’s case is that shortly after he raised this issue, his colleagues deliberately withheld and even altered his advice to the HRPA that the materials posed a risk and needed to be recalled. When he sought to speak out against this, he was subject to intimidation and isolation in the workplace, as well as reduced performance scores and diminishment of his role.

The Respondent’s case is that they fully supported the Complainant in raising a concern and worked with him to bring it to the attention of the regulator voluntarily. The Respondent advised the HPRA that they believed that a recall was not necessary. The Respondent entirely rejects the Complainant’s allegation that they withheld or altered his advice. The Complainant was not only aware of this position, he was central to the Respondent arriving at it. He then tried to resile from this by blaming his colleagues and claiming that documents had been altered without his knowledge. 

From this initial dispute, which arose in the Summer of 2019, the relationship between the parties deteriorated rapidly.

The Complainant sought to raise his allegations about the Respondent’s conduct during their engagements with the HPRA through a number of internal channels. His relationships with his colleagues suffered, and he was placed on a performance improvement plan on the basis of his communication style. 

In February 2021, it came to the attention of the Respondent that the Complainant had been sending large volumes of emails out of the organisation, mainly to a personal email address but also to what appeared to be family members. He was suspended and filed this complaint on 14 July 2021 while suspended. On 4 March 2022, following an investigation, he was dismissed.

Hearings were held on 22 November 2022, 22 February 2023 and 24 February 2023, 22 May 2023, 25 May 2023, 26 May 2023.           

The Complainant attended the hearings and was, at first, represented by Darrach MacNamara BL instructed by Sean Costello Solicitors. Over the last three days of hearing, the Complainant represented himself.

The Respondent attended the hearings represented by Mark Connaughton SC instructed by Terrance McCrann and Jack Larkin of McCann Fitzgerald. 

Following his dismissal the Complainant submitted this complaint under the Unfair Dismissals Act. That issue is considered under ADJ-00039212.

These cases proceeded over 7 days and significant evidence was submitted in written form as well as given orally under oath or affimation.  I have taken the time to carefully review all the evidence both written and oral and have noted the respective position of the parties.  However, I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.

The Complainant submits that just under a year after his appointment as Pharmacovigilence Manger he discovered a serious issue regarding marketing materials which were being distributed by the Respondent.

He raised these issues immediately with his colleagues both locally in Ireland and at a European level. While he was initially not believed by his Irish colleagues their view changed once outside advice confirmed the issue and that the regulator, the HPRA, needed to be informed. Throughout May 2019 he was part of a small cohort of staff who reviewed these issues more widely and liaised with the HPRA to self-report. Because of this his housing benefit, that is his apartment paid for by the Respondent, was removed from him.

On the 24th of May 2019 the Complainant was involved in issuing a response to a series of questions posed by the HPRA following the Respondent’s self-report. As local safety responsible his input should have been key. In earlier drafts of this response, he clearly flagged that the Respondent would recommend recall of the offending materials. However, the final version of this communication as well as a number of underlying excel documents were altered without his knowledge. The recommendation to recall the materials was removed. He only discovered this a few days later when the HPRA reverted to query recall again.

The Complainant immediately challenged what he saw as a misrepresentation of his advice to the HPRA. He felt his colleagues turned on him in response. These interactions were happening in the run up to the resulting HRPA inspection and pressure began to be put on him to say that he had been the one to recommend not recalling the offending materials. He refused. This pressure culminated in a meeting with the then CEO who was clear that he needed to support the team during the inspection. Ultimately, he had little role in the inspection.

Later that year the Complainant was effectively demoted when a new manager was appointed above him. From then on, he was being marginalised in the workplace. He received a poor performance score for communication skills and lack of trust in the team which caused his bonus to be reduced in 2020. He was placed on a performance improvement plan.

Throughout 2020 he suffered through, what he considered to be, a campaign of moral harassment due to his actions in speaking up. He was micromanaged, encouraged to resign by a performance coach and had his role diminished. He formally reported these issues through the internal whistleblowing chain in October 2020 and again received a poor performance rating for 2021.

Throughout this time the Complainant was emailing documents to himself and a number of close family members from his Roche email account. This was necessary to sustain his claims in case he was ever frozen out of the organisation or dismissed, particularly as the Respondent had a history of altering documentation as he discovered in May 2019.

Ultimately this came to pass in February 2021 when the Respondent discovered he had been emailing himself documents and immediately suspended him.

The Respondent takes any issue relating to regulatory compliance extremely serious. Especially so when it potentially relates to patient safety.

The Complainant joined the Respondent in August 2018 and was a valued member of their team. When he reported an issue, they immediately worked with him and self-reported to the HPRA. The Complainant was actively involved in drafting the responses to the HPRA queries in May 2019 and approved of the contents of the specific communication where they did not recommend recall.

Ultimately recall was a matter for the HPRA and while they did decide that recall was necessary, they were entirely satisfied with the Respondent’s engagement and completed all inspections to their satisfaction. The HPRA considered the matter resolved by September 2019. The Respondent was grateful to the Complainant in flagging the issue with the marketing materials and took his concerns extremely seriously.

In November 2019 the Complainant was given a poor score regarding communication skills in his performance review. He was placed on a performance improvement plan and the Respondent made every effort to assist him in improving his performance. He was assigned an independent external coach and given the benefit of one to one meetings. The Complainant stopped engaging in the Performance Improvement Plan in Spring 2020 and the Respondent essentially abandoned the plan rather than try and force engagement.

In October 2020 the Complainant made a series of allegations via the Respondent’s internal whistleblowing channel. The Respondent investigated these thoroughly by assigning a specialist team unconnected to the Irish affiliate. The Complainant’s allegations were not upheld, and this was communicated to him in early 2021.

Shortly after this outcome the Complainant became argumentative on a teams call with a number of other colleagues. In this exchange he revealed that he had been collecting company information. The Respondent IT department did an initial review and discovered that he was emailing out of the organisation frequently and to several different email addresses. In the circumstances they believed that they had to move to suspend him.

The Respondent supported the Complainant for flagging the initial issues in May 2019 and reported themselves to the regulator promptly. Not only was the Complainant not penalised but he was frequently treated in a more favourable way than the Respondent’s policies allowed, this was demonstrated in his housing benefit, his health insurance benefit and his being allowed to work remotely from France following other employees being recalled to Ireland.

Six witnesses appeared on behalf of the Respondent and gave evidence on oath or affirmation. They were:

Mr Patrick Weston, Compliance Partner.

Ms Kim Kirwan, Regulatory Affairs Manager.

Mr Patrick Lennon, Compliance Manager

Mr Pierre Allen Delay, from CEO Roche Ireland

Ms Alison Muir, Current CEO Roche Ireland

Mr Mike Young, Strategy Cluster Lead

Protected Disclosures

The Complainant’s case is for penalisation for making a protected disclosure. He alleges that he made several protected disclosures spanning from May 2019 to July 2021.

The Respondent argues that the Complainant only made one protected disclosure. That is when he raised issues regarding their marketing materials in May 2019.

Section 5 of the Act outlines that a protected disclosure is a disclosure of information where, in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and it came to the attention of the worker in connection with the worker’s employment.

Subsection 3 goes on to outline that The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed

Baranya v Rosderra Irish Meats Group Ltd

The Supreme Court decision in Baranya v Rosderra Irish Meats Group Ltd considers parts of the 2014 Protected Disclosures Act in some detail. In particular, Hogan J outlined the Court’s approach in deciding what statements can be regarded as protected disclosures under this Act.

As I intend to follow the approach laid down by the Supreme Court in this decision, I believe it is helpful to copy the relevant section of the decision in full (points 40 -45).

40. There remains the question of what Mr. Baranya actually said. It is agreed that he said that he was in pain and that he wished to be assigned another role. Taken in isolation it might be said that such a communication in itself did not amount to a protected disclosure because it did not allege wrongdoing in the sense envisaged by s. 5(3)(d) of the 2014 Act. An employee might, for example, be in pain for any number of reasons which were unconnected with workplace health or safety. A complaint of that particular kind would accordingly not amount to a protected disclosure.

41. Yet these words cannot be taken purely in isolation, as there was the context of the complaints which had been made by Mr. Baranya in the months which proceeded his dismissal. Accordingly, onone view of the evidence it might be said that a complaint that he was in pain could only realistically be linked to (an implied) complaint in respect of workplace health and safety, although this would ultimately be a matter for the Labour Court to assess. To my mind no precise form of words is required for this purpose: it would suffice that it was clear from the general context in which the communication had been made that a complaint in relation to workplace health or safety had been made by the worker concerned, either expressly or by necessary implication and that it tended to show that health or safety had been or would be endangered. One should also observe that Mr. Baranya also contends that he said that he was in pain “due to work”, although this is denied in emphatic terms by Rosderra.

42. This is where the role of the fact finder assumes critical importance. Given the dispute as to what was actually said and the precise context in which those words were uttered, it fell to the Labour Court to make very clear findings of fact on these points. The Court was thus obliged to find the primary facts (i.e., what was actually said) and then to draw such conclusions or inferences (which are sometimes described as secondary facts) from those words and their surrounding general context as it thought appropriate.

43.   In essence, therefore, the issue for the Labour Court was first to ask what precisely did Mr. Baranya say and, second, to inquire whether, having regard to the general context of the words actually uttered, they amounted to an allegation of "wrongdoing" in the sense of both s. 5(2) and s. 5(3)(d) of the 2014 Act, i.e., did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information - however basic, pithy or concise - which, to use the language of s. 5(2) of the 2014 Act, "tends to show one or more relevant wrongdoings" on the part of the employer: to adopt the words of Sales L.J. regarding a parallel provision in the corresponding U.K. legislation, the disclosure must have "sufficient factual content and specificity" for this purpose: see Kilraine v. Wandsworth L.B.C. [2018] ICR 1850 at 1861, even if it does merely by necessary implication.

44. If these two questions can be answered in the affirmative - a matter which I again stress is for the Labour Court as fact finder in the first instance and in respect of which I offer no view - then the complaint can be regarded, at least in principle, as a protected disclosure.

45. Where I respectfully part company with the judgment of O'Regan J in the High Court is that I cannot agree that there was a sufficiently clear finding of fact on the part of the Labour Court in respect of these matters. On this point the Court simply states that the communication “by the worker related to the fact that he wanted to change roles as he was in pain.” This would appear rather to be a description of the complaint as distinct from a specific finding of fact as such, a point underscored by the use of the word “relates.”  This statement on the part of the Court is, however, ambiguous on this critical issue as it is again unclear as to whether Mr. Baranya alleged that he was in pain by reason of workplace health and safety issues or, alternatively, whether he just simply said he was in pain and did not attempt to connect it (whether expressly or by necessary implication) to any issues of workplace health or safety.

As the fact finder in this case my obligation is to apply the above test to alleged protected disclosures where they are connected to an act of penalisation.  

Penalisation

Section 12 of the Act makes it unlawful for an employer to penalise an employee for making a protected disclosure. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

Penalisation is defined as to mean any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

The Complainant has made a number of allegations of penalisation against the Respondent, that is, detrimental acts taken against him by the Respondent resulting from him having made a protected disclosure.

As the Respondent has identified in their submissions, I am required to apply a "but for" test as the Labour Court outlined in Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R.

the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that 'but for' the Complainant having committed the protected Act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

Cognisable Period

The Workplace Relations Act 2015, which amended the Protected Disclosures Act 2014, sets out time limits for the consideration of any complaint under this Act.

Section 41 (6) outlines that an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of theperiod of 6 months beginning on the date of the contravention to which the complaint relates.

Subsection 8 provides me with the option to extend this period due to reasonable cause however, I can see no case for such an extension to be applied.

This complaint was issued on 17 July 2021. As such, in this case I am considering alleged acts of penalisation which have occurred since 17 January 2021.

Approach to findings

This case concerns a complex dispute which began sometime in May 2019. In order to make coherent findings regarding the allegations of penalisation which occurred within the cognisable period, I am required to make findings regarding the events which happened outside the cognisable period. 

Throughout the hearings, the Complainant raised numerous allegations of penalisation and cited several different communications which could be considered protected disclosures. In deciding whether penalisation occurred, the approach I have followed has been to first make findings as to the relevant facts since 2019. I have then considered whether an alleged detriment occurred and, where it did occur, I must decide whether it was in response to a protected disclosure.   

My approach has been to divide these findings into rough periods of time.

Findings Regarding Initial Communications Regarding Marketing Materials and Housing Benefit

After being hired by the Respondent in 2018, the Complainant was given the benefit of subsidised housing. In the context of the Dublin housing market, this was an extremely welcome benefit. However, it was time-limited. The Complainant had significant issues sourcing an alternative housing arrangement. The Complainant's subsidised housing ceased on 17 May 2019.

On 8 May 2019, the Complainant notified the Respondent’s Qualified Person Responsible for Pharmacovigilance (“QQPV”) for all of Europe that certain marketing materials were a potential patient safety risk. As outlined in in other parts of this decision, these materials appeared extremely similar to patient information materials, which are tightly controlled and regulated by law. In some cases, these marketing materials appeared to be less explicit or detailed about patient risks compared to the approved patient information material. The issue arises that, because of the similarity between the two documents, a patient or healthcare professional could refer to the marketing materials when they think they are reviewing the approved “risk minimisation” materials. It is accepted by both parties that the Complainant’s communications notifying the Respondent of this issue was a protected disclosure. 

Upon discovering the issue, the Complainant engaged with his colleagues locally and his Pharmacovigilance colleagues internationally. Mr Pat Lennon arranged a meeting with a respected former HPRA inspector who now works as a consultant on 10 May. The Complainant attended this meeting, where the consultant agreed with his analysis that the marketing materials were a significant issue and that the HPRA needed to be contacted.

In evidence, the Complainant appears to have been upset that his colleagues did not immediately accept the seriousness of the situation on his word alone but sought further advice. However, he does not allege that relations had become strained or difficult at this point, and it appears that everyone was working well together to deal with the situation. For context Mr Lennon did state in evidence that he sought additional advice because the issue with the marketing materials had gone undetected for several years despite regular internal audits. He was surprised that something like this could happen, so he wanted to get some outside advice to confirm that this was a significant problem.

The Complainant’s first alleged incident of penalisation was regarding his housing benefit ceasing on 17 May 2019. He outlined that he believed this was due to his having raised the above protected disclosure some nine days before. 

The Respondent has made submissions on this issue and provided all communications between the Complainant and the H.R. Department regarding his housing benefit as well as their own internal policies.  

The standard Respondent policy is that housing is provided for up to one month to employees who move abroad to work for them. The Respondent, as the Irish subsidiary, has an informal policy of extending this period to three months.

The Respondent extended the Complainant’s accommodation benefit to ten months. The Complainant was notified that this benefit was due to expire on 15 May 2019 before he alerted the Respondent about the problems with the medical marketing materials. In an email dated 11 April,  before the Complainant was even aware of the offending medical marketing materials, the Respondent's H.R. Department clearly confirmed the date his housing would end and that they would pay all B.I.K. relating to the benefit. They also offered to arrange for the Complainant to take over the lease and payments for the apartment he was in.

On 10 May, the Respondent H.R. Department followed up with the Complainant, asking him whether he would like to take over the rent and stay in the apartment and notifying him that the apartment would only be available until 30 June.

Somewhat bizarrely, considering the previous communications and the obviously generous nature of the Respondent's housing policy, the Complainant responded to this email stating, "I am shocked by the timing of your communication impacting my life. I decline your housing proposal please advise me with the exact date and time you want me to give back the keys.”

Despite this terse response, the Respondent H.R. personnel still facilitated a further short extension to the 17th and also helped the Complainant find short-term rentals.

I can see no basis for the Complainant’s assertion that losing his housing support was in any way related to him having made a protected disclosure. Counsel for the Respondent has argued that not only is there no basis for the Complainant's allegation, but on a plain reading of the emails and a review of the relevant dates, the Complainant must be aware that the cessation of the housing benefit is totally unrelated to his protected disclosure. He has suggested that the Complainant maintaining this position despite the obvious facts damages the Complainant’s credibility more generally.

The Complainant withdrew this allegation when he had the benefit of representation, then revived it when he took over the running of his own case. The Complainant himself conducted cross-examination of the Respondent witnesses while remaining under oath. He cross-examined the Respondent's current C.E.O. Alison Muir on this issue and specifically asked her why other named senior employees were allowed to maintain their housing benefits indefinitely. Ms Muir explained that foreign direct hires, such as the Complainant, are treated differently under the policy to international transfers of existing staff.

I agree with the point made by Counsel for the Respondent. In alleging that his housing benefit was cut due to him having raised the protected disclosure, despite the decision clearly predating the disclosure, the Complainant has demonstrated that he is willing to progress general and unrelated grievances against the Respondent via this complaint of penalisation under the Protected Disclosures Act.

Findings Regarding Communications to the HPRA dated 24 May 2019.

A key point of dispute between the parties is the communication that went to the Health Products Regulatory Authority (“HPRA”) on 24 May 2019. This communication followed the Respondent self-reporting the issue the Complainant had identified to the HPRA. This occurred on 21 May and was followed up in writing on 22 May. The HPRA came back with detailed questions, which the Respondent was required to respond to on the 24th. One of these was whether or not retrieval of the offending materials was warranted.

Key to the Respondent’s defence is their argument that the Complainant was directly involved in the decision not to recommend a recall in May 2019 and that his subsequent allegation that documents had been altered behind his back was false.

The Complainant has two major issues with this communication issued to the HPRA; both are contained in the same sentence. That is, No risk of incorrect use of RoctActemra, Tecentriq and MabThera has been identified arising from the distribution of these thirteen marketing materials and Roche does not believe H.C.P.s should be instructed to retrieve these materials back from patients.

In evidence, the Complainant went into some detail as to his issues with the marketing materials distributed. In particular, those relating to Tecentriq. The Complainant brought the hearing through the officially sanctioned patient risk minimisation materials and then the nearly identical marketing materials. Under the heading Immune Related Hepatitis, both materials start with the same line, cases of hepatitis, including fatal cases, have been observed with Tecentriq treatment. However, further on, there is a difference. The approved material tells the reader that of the 47 patients who developed hepatitis following using Tecentriq, one died. The marketing material omitted this detail.

The Complainant was adamant that this omission posed a risk to patients and he would never sanction a contrary view being expressed to the HPRA. His position is that as there was a risk it followed that a recall was necessary and that he believed that was what they were going to do. Earlier drafts of the response sent to the HPRA and the associated appendices outlined that position. The Complainant alleges that these were changed just before being sent to the HPRA and that he was unaware of these changes. Though he was cc'd on the final version that went to the HPRA he had no idea that somebody would change the documents and saw no reason to check them further.

Mr Patrick Lennon, the Respondent’s Compliance Manager, gave evidence on behalf of the Respondent. He described the rush to meet the deadline of 24 May. He, the Complainant and a colleague, Kim Kirwan, sat around in a small meeting room updating a Google document together until just before 8 pm when it was sent to the HPRA. Each of them had their laptops open and were working together, while a fourth, more junior colleague updated the appendices to reflect their changes. They deliberated together and concluded that recommending a recall was not necessary. The decision could only have ever been made with the Complainant's support as he was the pharmacovigilance expert. He has no doubt whatsoever that the Complainant knew the changes being made. Ultimately, the Complainant was the patient safety expert in the room.

Kim Kirwan, Regulatory Affairs Manager, also gave evidence. She shared an office with the Complainant and was one of a few staff working closely with him following his discovery of the marketing materials. She described how, on the 24th, she, the Complainant and Patrick Lennon had worked closely throughout the day and then came together towards the end of the day to finalise the document. They sat in the meeting room with the live document up in front of them and agreed on changes. The three of them were present right up until the response was finalised and they then sent the document in from her email account. Her memory was that they had agreed that recall was likely for some documents at this point but was not required for the majority and as such they did not want to recommend it on the 24th. Ultimately, the HRPA would make the call.  

The Respondent is also at pains to point out that the position outlined in their communication of 24 May 2019 was a legitimate view. For instance, regarding the drug Tecentriq, the offending medical marketing materials also informed patients of a potential risk of hepatitis and that there had been fatal cases.

This dispute as to what happened on the 24th is relevant for three reasons. Firstly, the accusation that these communications to the HPRA were altered without the Complainant's knowledge is a reoccurring issue advanced by the Complainant from this point on. Secondly, for the Complainant to establish that any particular communication is a protected disclosure he must establish that it was based on his reasonable belief. The Respondent argues that reasonable belief is not present because the Complainant participated and approved the decision he later complains about. Thirdly, the Complainant's justification for sending emails to himself was that he needed to prevent the Respondent from destroying or altering documents and that this became necessary after their actions on the 24th.

Both Kim Kirwan and Patrick Lennon gave convincing evidence as to how the day of the 24th unfolded and how the decision was arrived at not to recommend a recall. The Complainant, on the other hand, gave vague evidence of the events of that day. When he was asked about it, he took an argumentative view of “how could I approve of such a thing” rather than recount in any consistent detail where he was and what he was doing when the document was finalised and sent.

Having regard to all of the above, I prefer the Respondent’s evidence as to what occurred on 24 May and conclude that the Complainant was involved in the initial decision not to recommend a recall.

Findings Regarding Meeting with Respondent C.E.O. 18 July 2019

The HPRA responded to the Respondent on 7 June 2019. Amongst other issues they sought to challenge the decision not to recommend a recall. Particularly in regard to the marketing materials associated with one drug, RoActemra.

Following this communication, the Complainant's relationship with his colleagues deteriorated sharply. In particular, he began to complain about the more junior member of staff, who had assisted Mr Lennon, Ms Kirwan and himself on 24 May. This person had altered the appendices to the email sent to the HPRA to reflect the agreed changes in the body of the email. The Complainant began alleging that she had done this behind his back. As his colleagues were aware that he had been party to the decision not to recommend recall, they saw this criticism as unfair. In particular, Kim Kirwan became unhappy with the Complainant’s frequent comments and lost her temper with him in an open plan part of the office. When giving evidence, she was clear that she regretted this incident.

On 17 June, the HPRA announced a two-day regulatory inspection due to take place on the 30th and 31st of July 2019. The Complainant's allegation is that during the run-up to this inspection, the Respondent sought to pressure him to state that he had decided not to recommend a recall. A document drafted included a timeline that placed the responsibility of not recommending a recall with the Complainant. The Complainant challenged this document.

This pressure culminated in the meeting of 18 July 2019, which the Complainant attended with a number of other key personnel, including the then C.E.O. Mr Pierre Allen Delay.

The Complainant's account of the meeting was that it was held in an area of the building far away from where people normally worked and when he got there the other staff, including Mr Lennon and Ms Kirwan, were outside the room. When he arrived, they filed in together and everyone sat on one side of the table and the Complainant was put in the position of having to sit on the other side. Mr Delay then began to pressure the Complainant to collaborate with his colleagues and agree to the position being put forward regarding the decision not to recommend a recall.

Much of the Complainant’s evidence on this issue was disputed. Kim Kirwan provided evidence that the meeting attendees sat around the table. Not arranged against the Complainant on one side alone.

However, Mr Delay’s evidence largely supported the Complainant’s allegation. While he disputed that he was putting pressure on the Complainant or engaged in any sort of intimidation, he outlined that the purpose of the meeting was to get the staff aligned on what they would say to the regulator about the decision not to recommend a recall. Mr Delay was even frank enough in stating that he had no view as to the truth of the dispute between the Complainant and his colleagues about whether the Complainant was involved with the decision not to recommend recall; he just wanted his staff to be presenting a shared account when dealing with questions from the HPRA.

As I have come to the above findings about the Complainant’s role in the decision of 24 May I cannot find that Mr Delay's actions are an act of penalisation as they do not relate to a protected disclosure, in any event they occurred well before the cognisable period of this complaint. However, it is concerning that the Respondent's C.E.O. sought to get employees to agree on a version of events to be put to the regulator rather than recognise that each employee had an individual obligation to engage with the regulator truthfully.  

Findings Regarding Management Changes the End of Year PR 2019

In September 2019, Mr Patrick Weston was appointed head of License to Operate. This new role was above the Complainant in the organisational chart and he was no longer a direct report to the Chief Medical Officer. The Complainant has alleged that this was an act of penalisation.

Mr Weston gave detailed evidence as to the origin of the License to Operate ("L.T.O.") function and that it had been rolled out over a number of affiliates at the same time. Generally, the Respondent’s structure changed to become flatter and reporting lines coalesced into Chapter Leads. L.T.O. was one such chapter. It is clear from Mr Weston's evidence that these changes were unrelated to the Complainant's protected disclosures.

In November 2019 the Complainant received a negative performance rating. Key to this finding was a view that he lacked trust in the team. Generally, the Complainant was marked down on soft skill interactions.

The Respondent’s performance review system includes a process whereby colleagues review each other. As such, colleagues' feedback influenced the Complainant's poor review. This included colleagues from both the Medical and Marketing departments which the Complainant's protected disclosures had implicated in May.

Throughout their submissions and the various hearing dates, the Respondent maintained a position that the Complainant's protected disclosures were welcome and fit into management culture which promoted speaking up. There is certainly evidence to support this assertion. The Respondent acted quickly upon the Complainant's disclosures and, within days, self-reported to the regulator and allocated significant resources to deal with the issue. However, the Respondent also appears to have made the assumption that, because of their policies and the position of their leadership, all of their employees shared this view.

The Complainant provided detailed evidence as to the seriousness of the issue that he identified. With the benefit of subsequent reviews, we know the Respondent's production of marketing materials which mimicked patient risk information materials was widespread and had gone undetected despite internal audits and other controls. It is reasonable to conclude that the Complainant’s disclosures would have, at the very least, caused significant disruption and stress to the teams which produced and approved these materials.

In the circumstances, a reasonable employer might expect a degree of damage to the Complainant's relationship with his colleagues. They might even take proactive steps to avoid some foreseeable adverse reactions, such as social exclusion. It was clearly not reasonable to continue with the normal P.R. process and canvass the employees most affected by the Complainant's disclosure for their opinion on him in a manner which gave them the opportunity to influence his bonus and career progression. There is an obvious opportunity to mark a discloser down on subjective criteria, like interpersonal skills, in order to retaliate against them.  

While this P.R. review and the resulting bonus reduction all occurred before the cognisable period, I believe it is important to note what I see as obvious issues with this process.

Findings Regarding Management of Complainant and 2020 End of Year Review

Both the Complainant and his manager Mr Weston gave evidence as to their working relationship.

The Complainant has provided evidence that starting with the appointment of Mr Weston in September 2019 he felt micromanaged. The Complainant alleges that Mr Weston interfered extensively in his day-to-day work and did not trust him to conduct his role's responsibilities. He was required to CC Mr Weston in emails. Mr Weston began to take meetings that the Complainant would normally take. He referred to a specific incident when the Respondent was involved in a transaction in India and the Complainant directly contacted the medical director in India. He alleges that he was later told he should not have done this. There were also further follow-ups from the HPRA, which the Complainant was excluded from. 

After the performance management process in November 2019, there was engagement between the Complainant and his colleagues to try and find ways to improve their working relationship. He states that Miss Kirwan rejected an attempt on his part to move past their earlier disagreements. He also alleges that another colleague refused to get a coffee with him. In evidence, he accepted he has a direct communication style and there may be a difference between French and Irish approaches to these matters. The Complainant also acknowledged that Mr Weston congratulated him on his work in May 2019 and on catching the problem reported to the HPRA.

In 2020, the coronavirus hit, and staff moved to remote working. This clearly made it more difficult for the Complainant and his colleagues to engage.

Complainant alleges he was sent for a punitive medical referral in June 2020. In July 2020 he wrote directly to the HPRA requesting advice and raising concerns about a new training slide deck regarding one medication and the formatting of patient risk materials for another. On the 20th October 2020 the Complainant decided to raise a complaint about Mr Pierre Alain Delay and the events of summer 2019. In November 2020 the Complainant was again given a needs improvement score in his performance management plan. This impacted on his 2021 bonus.

Mr Weston has also provided evidence of his relationship with the Complainant from this same period. He outlined that in their first meeting together the Complainant suggested that he wanted to be put on a French contract and he wanted Mr Weston to do something about his “crappy Irish contract”.

After the Complainant received a negative Performance Review the Complainant made clear that he only wanted have performance meetings with the assistance of H.R. Mr Weston agreed to this and H.R. began attending their performance meetings. These mediated performance meetings happened twice in 2020. Eventually, it was agreed to move back to the direct engagement between the Complainant and Mr Weston but by then coronavirus hit.

From June 2020 the Complainant began to allege Mr Weston's attempt to manage him and the P.I.P. were moral harassment and even alleged that this conduct amounted to a criminal offence.

At this point, Mr Weston went to human resources and got additional support for the Complainant in the form of an external performance coach. They did refer the Complainant for a medical appointment but only because he had suggested that the PIP process had been impacting his health. Ultimately, the performance process was parked and remained parked for the rest of the Complainant’s employment. When the Complainant's performance review came around again in November 2020, Mr Weston marked him as needs improved again.

Mr Weston is clear that the Complainant referring queries to the HPRA unilaterally in July 2020 negatively impacted his performance review in November/December 2020. There were other examples of the Complainant’s poor communication skills, Mr Weston was able to refer to a number of emails from October 2020 where the Complainant’s tone bordered on hectoring.

On review of the evidence available to me, I believe that there was a general deterioration of the relationship between the Complainant and the Respondent over the course of 2020. While the Complainant appears to have objected to attempts to manage and oversee his work, these interactions seem unrelated to any protected disclosure. In particular, I note that the Respondent arranged additional coaching resources for the Complainant, sought medical advice when he indicated that his health was suffering and paused the P.I.P. process when he objected to it. These all support their case that they were doing their best to work with the Complainant in the context of legitimate performance concerns rather than penalising him.

Mr Weston in his evidence was clear that the July 2020 disclosure to the HPRA was taken into account when deciding the Complainant's 2020 performance review which affected his 2021 bonus. I believe Mr Weston’s decision relates to the fact that the Complainant communicated with the HPRA without telling the Respondent and that this action and the tone of the email seemed unprofessional to him. Regardless of the motivation, this is a clear detriment related to a communication which falls under the protections of this Act. The Respondent has drawn my attention to the decision in Monaghan v Aidan & Henrietta McGrath Partnership, which refers to the Complainant’s requirement to establish that the detriment caused to him was as a result of his protected disclosure. This decision applies the "but for" test, in that where there are multiple factors potentially causing the detriment, the Complainant must show that the Protected Disclosure was determinative, that the detriment would not have happened "but for" the Protected Disclosure.

I am satisfied that there were multiple factors at play when Mr Weston decided in November 2020 to give the Complainant a "needs improvement" rating. As I have indicated above, the Complainant did display poor communication and collaboration skills. But, the performance management system is essentially a grading system. As such Mr Weston's reaction to the Complainant's July 2020 disclosure had to be at least, in some respects, determinative. As with any marking system, being marked down for any part affected the overall score. For instance, even if the Complainant had a relatively good performance management score but perhaps did not have a perfect score (and the highest corresponding level of bonus), I would have likely had to find that this was an act of penalisation in contravention of the Act because he would have gotten an even better score if he hadn’t made the protected disclosure.

The fact that the Complainant also had poor communication skills and that this legitimately factored into his performance management score and the reduction in his bonus is a matter I should take into account but in the context of remedy.

Findings Regarding 2021 and Suspension

As indicated previously the Complainant raised complaints relating to Summer 2019 in October 2020. These were pursued through the internal “speak up” channel.

These complaints were investigated over the course of winter 2020 and were resolved to the satisfaction of the internal speak up team. This outcome was communicated to the Complainant in early February 2021.

The evidence generally points to the relationship between the parties continuing to deteriorate during this period. The Complainant in particular appears to have reacted quite poorly to legitimate management requests. I note that in January the Respondent was in the process of getting staff who had relocated abroad during Covid lockdown to return. When Mr Weston messaged the Complainant asking whether he had gotten back to Ireland safely, the Complainant refused to answer Mr Weston directly and let him know whether he had in fact returned. He then complained about Mr Weston even asking this question to Ms Muir, who had recently been appointed as CEO. Ms Muir then facilitated the Complainant remaining in France.

When the Complainant was notified about the outcome of the speak up process he appears to have become upset. On the 5th of February he became agitated on a video call with a number of colleagues and indicated he was gathering information. Concerns raised by others on this call and brought to the attention of Ms Muir. The Respondent’s IT department preformed a review and discovered that the Complainant was emailing a large number of emails to outside email addresses. The Respondent then put the Complainant on paid suspension and shut him off from all access to the system.

The questions of this data breach and whether the Complainant’s dismissal was fair are considered in ADJ-00039212. However the suspension itself is covered by this complaint. My role is not to determine whether the suspension was reasonable in all the circumstances but whether it was penalisation as prohibited by this act.

I am satisfied that the Complainant’s suspension was caused by him emailing large volumes of information out of the Respondent organisation. Ms Muir provided evidence as to why she considered this necessary. There is no evidence it was caused by anything else or that this breach of company policy was just an excuse to suspend him. Indeed, it is not even clear that the Complainant believes the suspension was to do with his previous protected disclosures or whether his case is that he was entitled to email documents out of the organisation.

The question is then whether the Complainant’s actions in emailing out company information were in some way protected by this act. I cannot see how they are. Section 5 of the act defines what a protected disclosure is and as outlined above the Supreme Court have provided detailed guidance on how to interpret Section 5. In emailing information out of the organisation the Complainant does not even appear to be communicating with anyone, he was gathering information via his external email account and family’s emails accounts without the Respondent knowing about it. At a basic level the emails to himself were not even a disclosure of information, never mind a protected one.

Sections 7 and 10 do provide that protected disclosures can be made to outside regulatory bodies and even in some cases to members of the public or media. However, the Complainant has not offered any evidence to indicate that he was gathering information in collaboration with a third party in further any such protected disclosure under those sections. For the avoidance of doubt, I do not conclude that such an action would necessarily be protected by the act I just note that this argument was not advanced or considered. The Complainant was simply gathering emails, in breach of the Respondent’s policies and without a clear goal in sight. Such an action is afforded no protection under this Act.

Redress

I have found that the Complainant’s email to the HPRA in July 2020 was a protected disclosure and that this factor in his poor performance review in November 2020 which was a factor in his bonus being reduced in April 2021. This bonus reduction was an act of penalisation which occurred during the cognisable period.

The Complainant suffered financially as a result of this action. It is concerning that this occurred in the context of the Respondent’s business as there are few private sector organisations which can have a greater impact on public safety and welfare than a pharmaceutical company. While I understand that it is important for the Respondent to appear professional when dealing with regulators, employees must be protected when choosing to report concerns unilaterally. This is clearly something which is protected by Section 7 of the Act.

However, I am required to balance this view with the evidence that Mr Weston considered this communication alongside a number of incidents which demonstrated bad communication and collaboration skills by the Complainant. He was entirely entitled to address these issues with the Complainant via the performance management policy.

I also recognise that the Complainant has, throughout this process, advanced various grievances he had with the Respondent as retaliation for having made a protected disclosure, even when that assertion was patently unreasonable. Aside from the findings already made regarding housing I also note that when he alerted the Respondent that his health was suffering, the subsequent referral to occupational health was considered to him to be an act of penalisation. When his performance was poor the appointment of an outside coach to assist him was penalisation. When that same coach’s contract expired, this too was allegedly penalisation. Ultimately the only actual incident of penalisation was revealed by the Respondent themselves.

In the circumstances I believe a payment of €8,000 in compensation to the Complainant is warranted.

I find that the complaint is well founded and direct the Respondent to pay €8,000 in compensation to the Complainant.