Alan Shatter (Dublin South, Fine Gael)

I move amendment No. 4.

In page 27, between lines 34 and 35, to insert the following:

20.—(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—

(a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

(b) for giving notice of his or her intention to do so.

(2) Schedule 2* shall have effect in relation to an alleged contravention of subsection (1).

(3) Nothing in paragraphs (a), (c), (d), (e) and (f) of the definition of "penalisation" shall be construed in a manner which prevents an employer from—

(a) ensuring that the business concerned is carried on in an efficient manner, or

(b) taking any action required for economic, technical or organisational reasons.

(4)

(a) If penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in paragraph (a) of the definition of "penalisation", the employee (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if the employee or his or her parent or guardian, as the case may be, does so, a complaint of such dismissal may not be presented to a rights commissioner under paragraph 1(1) of Schedule 2.

(b) If an employee (or, in the case of an employee who has not reached the age of 18 years, the employee's parent or guardian, with his or her consent) presents a complaint to a rights commissioner under paragraph 1(1) of Schedule 2 in respect of a dismissal referred to in paragraph (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal.

(5) For the purposes of this section and Schedule 2, a reference to "dismissal" includes—

(a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

(b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(6) In this section, section 21 and in Schedule 2—

"contract of employment" means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

"disclosure", in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in —

(a) preventing the commission by any other person of a relevant offence, or

(b) securing the apprehension, prosecution or conviction of any other person for a relevant offence;

"employee" means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

"employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

(a) a person (other than an employee of that person) under whose control and direction an employee works, and

(b) where appropriate, the successor of the employer or an associated employer of the employer;

"penalisation" means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal,

(b) the threat of suspension, lay-off or dismissal,

(c) demotion or loss of opportunity for promotion,

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

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

(f) unfair treatment,

(g) coercion, intimidation or harassment,

(h) discrimination, disadvantage or adverse treatment,

(i) injury, damage or loss, and

(j) threats of reprisal."

This very important amendment arises out of the discussion we have had on the Bill. I thank the Deputies opposite for that discussion, which was helpful in improving aspects of the Bill.

During the debates on Second Stage and Committee Stage, a number of Deputies raised the issue of whistleblower protection. I agreed that there is a need to make provision for the protection of persons who disclose information to the Garda Síochána in relation to relevant offences, as required by section 19, to ensure that such persons will not suffer penalisation in the workplace. Accordingly, I brought forward amendments to provide for protection against dismissal or other penalisation for persons who provide information to the gardaí. The provisions are similar to the whistleblower protections provided in the Prevention of Corruption (Amendment) Act 2010.

The provision of whistleblower protection in the Bill does not conflict with the commitments in the agreed programme for Government relating to the introduction of whistleblowing legislation generally. There is a need to provide for specific whistleblower protection in this Bill because it is intended that it will be enacted before the summer recess and I do not wish to delay enactment of the Bill pending the enactment of the more comprehensive whistleblower protection legislation which we hope to see later this year.

Amendment No. 4 proposes to insert a new section 20 into the Bill, to provide protection for employees from penalisation for disclosing information relating to relevant offences. Subsection 20(1) prohibits an employer from penalising an employee for making a disclosure to the Garda Síochána in relation to a relevant offence, for giving evidence in relation to that disclosure in any proceedings for a relevant offence or for giving notice of his or her intention to do so. Subsection 20(2) provides that Schedule 2, to be inserted by amendment No. 8, will have effect in relation to an alleged contravention of subsection 20(1). Schedule 2 sets out the procedure for taking complaints before a rights commissioner and the Labour Court. Subsection 20(3) provides that the definition of "penalisation" in section 20 will not prevent an employer from ensuring that the business concerned is carried on in an efficient manner or from taking any action required for economic, technical or organisational reasons. Subsection 20(4) provides that where an employee wishes to seek redress for having been penalised by dismissal he or she may choose either the remedies available under this Bill or those under the Unfair Dismissals Act or at common law for wrongful dismissal, but not both. Subsection 20(5) sets out certain types of dismissal that are to be included within the meaning of the term "dismissal". Subsection 20(6) provides for the definition of certain terms used in sections 20 and 21 and Schedule 2. The term "disclosure" is defined to clearly link the new whistleblower protection provisions to the text of section 19, which prohibits the withholding of information. Of particular importance is the broad definition of "penalisation" which includes any act or omission of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment. The definition goes on to list specified instances of such acts or omissions.

Amendment No. 5 inserts a new section 21, which makes provision for a number of offences. Under subsection 21(1) it would be an offence for an employee to make a disclosure to the Garda Síochána in relation to a relevant offence, knowing the disclosure to be false or being reckless as to whether it is false. Under subsection 21(2) it will be an offence for an employer to contravene subsection 20(1) which prohibits the penalisation of an employee who makes a disclosure as defined in section 20. Subsection 21(3) provides for an offence in relation to false statements made under oath or affirmation by a person appearing as a witness at an appeal to the Labour Court against a finding of a rights commissioner under Schedule 2. Subsection 21(4) provides that where a person has been given notice requiring him or her to attend to give evidence at a Labour Court hearing of an appeal against a finding of a rights commissioner under Schedule 2 or to produce a document relating to the matter, it will be an offence to refuse or wilfully neglect to attend the hearing, to refuse to give evidence or to refuse or wilfully fail to produce the document. Subsections 21(5), 21(6) and 21(7) provide for penalties for persons convicted of offences under the section. Subsection 21(8) is a technical provision that provides for an evidential presumption in respect of a document from the Labour Court relating to a prosecution under subsection 21(4).

Amendment No. 8 proposes to insert a new Schedule 2 into the Bill to provide for redress for contravention of the new section 20. Paragraph 1 of the new Schedule 2 sets out the procedure for making a complaint to a rights commissioner that an employer has contravened subsection 20(1). The time limit for making a complaint is, in general, six months from the date of the contravention to which the complaint relates. Where the rights commissioner finds that an employee's complaint is well founded, the decision may require the employer to take a specified course of action which may include reinstatement or re-engagement in a case where the penalisation has constituted dismissal. The employer may be required to pay compensation of up to two years' remuneration. Paragraph 2 provides that a party may appeal to the Labour Court from a decision of a rights commissioner under Paragraph 1 and sets out the procedure in relation to such appeals. Provision is made for an appeal from the Labour Court to the High Court on a point of law only and the determination of the High Court on any such point of law is final and conclusive. Paragraph 3 contains supplemental provisions relating to Paragraphs 1 and 2. Paragraph 4 provides for the enforcement of determinations of the Labour Court. If an employer fails to carry out a determination of the Labour Court within 28 days from the date of the communication of the determination to the parties, the employee may apply to the Circuit Court for an order directing the employer to carry out the Labour Court determination. The Circuit Court may order the payment of interest on any compensation ordered by the Labour Court. Paragraph 5 provides that an employee to whom compensation is payable under Schedule 2 will be a preferential creditor in the case of the winding up of a company or a bankruptcy. Deputy Jonathan O'Brien may note that for the second time today we are dealing with preferential creditors in legislation.

Paragraph 6 provides for the amendment of the Protection of Employees (Employers' Insolvency) Act 1984 to include compensation payable under Schedule 2 in the insolvency payments scheme. This scheme provides for the payment of certain outstanding entitlements where employment has been terminated because of an employer's insolvency. Payments are made from the social insurance fund. This is a comprehensive, all-embracing provision designed to fully and properly address the issues that arose during our discussion of the legislation to ensure employees who report to An Garda Síochána instances of white collar crime, as the Bill requires them to do, do so in a manner which also ensures that they cannot be penalised in their employment. If they are penalised, there is a protective mechanism in place and a series of options available to them regarding the road they can travel to obtain the protection to which they are entitled.

See this speech in context