An employee reports a concern about wrongdoing. It arrives alongside an obviously deteriorating working relationship, and it is genuinely tempting to treat the whole thing as one interpersonal problem. That is a serious error, and it is the error that turns a manageable situation into a substantial claim.
A Distinct Regime, Not a Relationship Problem
Protected disclosures operate under their own statutory framework, with specific obligations on employers regarding how reports are received, acknowledged, assessed and followed up, requirements for reporting channels, and strong protection for the reporting person against penalisation for having made the report. The concern itself is about alleged wrongdoing — not about how two people are getting on — and it has to be dealt with through that framework. An employer that responds by offering a facilitated conversation has failed to engage with the report at all, and has done so in a way that is highly visible in retrospect. Worse, the mediation itself can become evidence: a process that has the effect of discouraging the report, or of trading it away in exchange for improved working arrangements, looks exactly like penalisation, whatever anybody intended. The reporting person, meanwhile, has been told implicitly that their concern about wrongdoing is really a personality difficulty — which is precisely the message the protective framework exists to prevent.
The Genuinely Separate Relationship Issue
There is a narrow and real exception, and it needs handling carefully rather than opportunistically. A person who has made a protected disclosure may also have a genuine, distinct working-relationship problem — sometimes pre-dating the report, sometimes arising from how colleagues have reacted to it. That can sometimes be addressed separately, once the disclosure itself is being properly handled through the correct channel, and where it is genuinely separable. Three conditions apply. The disclosure must be handled first and independently, through the proper process, not in parallel in a way that blurs them. The relationship work must not touch the substance of the disclosure at all. And nothing in it may operate to discourage the report, to obtain any concession about it, or to penalise the reporting person in any way — which means the terms need drafting with that specifically in mind. In practice, this is not something to attempt without advice, and the safe default where there is any doubt is not to mediate. Those matters route to whistleblowersolicitor.ie. The full exclusions page is here.
For employers: if a report might be a protected disclosure, take advice on that question before deciding anything else — including before offering mediation, and including where the employee themselves suggests it. The characterisation drives every obligation that follows, and getting it wrong at the first step is the expensive mistake in this area.
A report you are unsure how to characterise? 01 5827148.
Richard O’Shea — Solicitor & Mediator
Solicitor at Mary Molloy Solicitors (established 1981) and holder of the Law Society of Ireland Diploma in Mediation. The firm also runs a substantial employment practice, which is why the honest sorting question — whether a situation needs a mediation or an investigation — gets answered at the first call rather than halfway through. Workplace mediations are conducted on site, at neutral venues, at The Ormond Building on Ormond Quay, at the Kilkenny office — or fully online. The mediator is appointed by both sides and acts for neither. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about workplace mediation and Irish law. It is not legal advice and does not create a solicitor—client relationship. Every workplace situation turns on its own facts, and advice on yours requires a consultation.
The mediator is not your legal adviser. Where Mary Molloy Solicitors is appointed as mediator, the mediator is neutral: the mediator acts for no party, advises no party, makes no findings and decides nothing. This is so regardless of which party is paying the fee. All participants are encouraged to take independent legal advice, and in particular to take advice before signing any agreement reached in mediation. Employees may wish to seek advice from their own solicitor or trade union. The firm does not act as mediator in any matter in which it acts, or has acted, for a party — conflicts are checked before any appointment is accepted.
Mediation is not a substitute for a required process. Some matters must be investigated rather than mediated, including allegations of serious misconduct, matters engaging health and safety duties, and protected disclosures. Nothing on this site suggests that mediation should displace an employer’s statutory obligations, a grievance or disciplinary procedure where one is required, or a complainant’s entitlement to have a complaint formally investigated or to bring proceedings.
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