Courts

Nurse who claimed he witnessed care home worker pour water over resident loses whistleblower claim

Gerard Foy told Workplace Relations Commission that a colleague had ‘assaulted the resident’ and he reported it to management

Gerard Foy was told at a meeting six months after the incident that he had 'broken GDPR'. Photograph: Colin Keegan/Collins Dublin
Gerard Foy was told at a meeting six months after the incident that he had 'broken GDPR'. Photograph: Colin Keegan/Collins Dublin
Stephen Bourke
Thu May 02 2024 - 22:03

A care home nurse who said his career suffered because he reported a colleague’s alleged assault on a resident has failed in a whistleblower penalisation claim.

Gerard Foy, an agency nurse, told the Workplace Relations Commission that while he was at work at a HSE-run home for patients with intellectual disabilities, he saw a colleague, Ms A, “pour water over the head of a resident”.

Giving evidence to the employment tribunal, he said his view was that Ms A had “assaulted the resident” and reported it to management – but that he was left wondering whether “any action had ever been taken”.

Mr Foy was told at a meeting six months after the incident that he had “broken GDPR” by telling other colleagues what he saw and felt he had to agree to complete a course on data protection and apologise in writing to Ms A, he stated in evidence.

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He complied “out of fear that he would not get any further work” from the HSE, he added.

At the meeting, he was also told that if he had been a direct employee of the HSE “the incident would not have been reported”, he alleged.

The meeting in October 2020 was with Eva Hayes, a regional director of nursing for the HSE’s Intellectual Disability Residential Services, the tribunal heard. In legal submissions to the tribunal, she said the matter was referred to Hiqa and “dealt with through the disciplinary procedures”.

She added that any investigation into the incident was “not a matter for the complainant as any disciplinary matter is confidential”.

Ms Hayes’s evidence was that she had reassured the claimant at the time of the report that he had “done the right thing” and the patient was “safeguarded”, as the worker involved was taken off the shift.

His barrister, Donnacha Morgan BL, appearing instructed by Sean Ormonde Solicitors, submitted that reporting the abuse incident was “detrimental to [Mr Foy’s] professional good standing and professional progression”.

His client had been “isolated, bullied, victimised, and punished by way of reduced hours at times, interference with scheduled work, changed working schedules, potential transfers to other sections and also and perhaps most notably in relation to his failure to gain a permanent position despite being the most senior suitable candidate available”.

Mr Foy lodged his complaints against the HSE under the Protected Disclosures Act 2014 and the Safety, Health and Welfare at Work Act, 2005, in May 2022.

This followed his rejection following interview for a staff nurse post in February 2022 and a complaint he made about bullying by another colleague soon after, which he claimed was “never addressed” by management.

Adjudicator Louise Boyle ruled that Mr Foy was out of time to claim for any alleged detriment he suffered earlier than 27 November 2021, a date six months before his WRC complaints.

That meant she had no jurisdiction to consider the allegation that the worker was “scolded” for reporting the abuse incident during a handover; being made to apologise to Ms A, the GDPR training, and other matters.

Ms Boyle said she could find no causal link between Mr Foy’s failure to secure the staff nurse post and his protected disclosure and made a similar ruling on his complaint that he lost out on hours.

The adjudicator also said Mr Foy “appeared to have difficulties articulating specifics” about his claim that he was also refused work in other work locations in the service on foot of his protected disclosure.

She concluded that the worker had “failed to establish” penalisation which was linked to protected acts or disclosures during the time period in her jurisdiction and rejected both of his complaints.