Dr. Lauren Kierans:

In respect of the point the Senator made about time and the clock running as regards when the investigation is taking place, there is a risk that during that time the person is being subject to retaliation but is not, perhaps, aware of it because the person is sitting on the sidelines and waiting for everything to come to a conclusion. The problem with the person bringing claims is the time that runs from the date of the penalisation. I will explain that, and this ties into Mr. Devitt's point about to whom the protections are afforded. Employees can enforce their rights before the Workplace Relations Commission, while all other workers, including employees, have to go to the civil courts. Employees have to elect to go to the WRC while workers, other than employees, can only go to the civil courts.

If an employee is bringing a claim before the Workplace Relations Commission, he or she only has six months to bring that claim. The problem with regard to penalisation is that the time runs from the date of the first penalisation. Many claims have been deemed out of time. Some 30% of cases that have been unsuccessful are unsuccessful due to procedural grounds such as being out of time. In contrast, under the legislation in the UK, time runs from the date of the last penalisation, when the penalisation ends. There have been cases before WRC which were cases of suspension, allegedly because the person made a protected disclosure. They were filed before the WRC outside of the six-month time period, although the person was still on suspension. However, it was found that the person was out of time in filing the claim. That six months can be extended to 12 months in exceptional circumstances, but it is very rare that it would be extended. That is one issue in respect of the timeframe.

Second, we talk about the whistleblower protection as being the pan-sectoral whistleblower protection that gives protection to all workers, in contrast to the preceding sectoral approach to whistleblowing law. The differentiation of individuals as being employees or workers and where they can bring their claims is not a level playing field. Workers who bring claims before the civil courts are limited to bringing claims of detriment. Detriment is defined differently from penalisation under the Act. The definition of penalisation under the Act is a non-exhaustive list and contains a range of acts of omission that cause detriment to an employee. Furthermore, that is extended under the EU whistleblowers directive, but under the heads of the Bill it is only that definition of penalisation that applies to employees that has been extended. The claims before the civil courts are for this more limited form of detriment. Of course, if you go to the civil courts, there are some disadvantages in respect of a costs order being made against you if you are unsuccessful and the time it takes for a case to be heard before the civil courts. Arguably, we need to treat them all in such a way that they all can go to the WRC, as Mr. Devitt mentioned.