Bernard Durkan (Kildare North, Fine Gael)

I move amendment No. 27:

In page 37, between lines 31 and 32, to insert the following:

"(4) An employer shall not be deemed to have penalised an employer where it is established that any of the actions taken in subsection (2) were—

(a) in order to guarantee the employee's safety,

(b) taken for commercial reasons; or,

(c) taken for other reasons unconnected with the conduct or actions of the employee.".

This is somewhat similar to the previous amendment in the sense of what it deals with. There seems to be an error where the amendment states "An employer shall not be deemed to have penalised an employer". I presume this should read "penalised an employee".

There is a valid case in respect of the new subsection (4)(a) put forward in the amendment. There may be a determination by an employer who has responsibility to take an action, which may not be seen to be fair at the time, in order to guarantee an employee's safety. It may not be possible to explain the reasons for such a determination. For example, there may be other matters internal to the organisation to which reference cannot be made. To ensure that there are no abuses under this heading, the section referred to by Deputy Howlin and other sections should address this.

The term "taken for commercial reasons" is used in paragraph (b) of the amendment. In certain circumstances, the person deemed to be the employer may have to take decisions for commercial reasons beyond his or her control without falling foul of this section.

I do not have the benefit of Deputy Hogan's thoughts on the final part of the amendment but I suspect it has a number of meanings, such as actions or impending actions in other areas or developments of which the employer may know in advance and to the employee seems unfair. This amendment takes one issue with another and highlights the typing error. I wish to know the Minister of State's views of it.

See this speech in context