Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

The Minister has asked me to thank Members for an informed and thoughtful discussion. He is grateful for the broad support the Bill has received. While he expects there will be some areas where we will have to agree to disagree, he also thinks there are opportunities here for all of us to work together to make this Bill as good as it can be.

Before I respond on his behalf to some of the specific issues raised in the debate, he and I would like to acknowledge in particular those contributions that highlighted specific cases of workers who have suffered the worst consequences for doing little more than follow their conscience and try to right a wrong. It makes for uncomfortable listening but is a stark reminder to us all of the necessity for this legislation. It is by listening to the lived experiences of these brave people that we can face up to and learn from the mistakes and injustices of the past and do our best to do right by those who will find themselves in similar positions in the future.

Turning now to some of the specific issues raised, understandably, a number of Deputies raised concerns about missing the transposition deadline. The Minister very much regrets that this legislation has not been enacted on time. It is essential, however, that a Bill of such importance as this is done correctly as the consequences for whistleblowers when legislation intended to protect them fails to work as expected can be devastating. Many examples of this were given during the debate last night.

Deputy Michael Collins asked about fines arising from infringement proceedings. We will face infringement proceedings for failing to meet the transposition deadline and a notification from the EU has been received to this effect. The precise form such sanctions will take are not yet known. The publication of the Bill and its reading in the House this week shows that Ireland is serious about transposing the directive and is making progress in this regard.

Deputy Mairéad Farrell and others raised concerns about the cap on awards that applies to complaints of penalisation made to the WRC. There are statutory caps on awards that can be made at the WRC under sections 11 and 12 of the principal Act but not on any awards the High Court may make if a person pursues a tort action under section 13. The maximum that the WRC can award under the Act is five times an employee’s annual salary. This compares with the norm of twice salary in ordinary grievance cases and reflects the special status the Act gives to whistleblowers.

The Supreme Court took into consideration the fact that the WRC is limited in the amounts of compensation it can award when it considered the constitutionality of the WRC in the Zalewski case last year. The Minister is advised that, taking into account the Supreme Court’s ruling in this case, it is not possible to allow the WRC to award unlimited amounts of compensation. It is in effect a body of local and limited jurisdiction like the District and Circuit Courts. If a person suffers such serious consequences that the maximum award available at the WRC is not sufficient to repair the harm done, they should instead make a claim for damages under section 13 of the Act, where there are no limits if the case is brought before the High Court.

Many Deputies have raised the matter of the threshold of 50 employees that applies to the obligation to have internal reporting channels. Implementing the requirements as regards internal reporting channels will create a compliance burden for industry. The European Commission’s impact assessment of the directive estimates that the costs for a typical small to medium-sized enterprise, SME, would be more than €1,000 annually.

Blanket imposition of the requirement to have internal channels to all employers would be disproportionate, particularly given the impact of the pandemic and Brexit on the SME sector in Ireland and could be unworkable in many situations, such as microenterprises, for example. It is hard to see what benefit there is in imposing these elaborate requirements on the local sweet shop, on a plumber and his apprentice or, indeed, on a Deputy's constituency office. It could also create a compliance burden for some voluntary or member-led organisations with a small cohort of employees, particularly in the areas of sport, heritage and the arts.

The Minister recognises, however, that some sectors involved in certain high-risk activities could benefit from being subject to this requirement. Deputy Cronin raised a concern about the application of this threshold to the financial services industry. In this regard, the directive and, therefore, the Bill, provide that the 50 employee threshold does not apply in the areas of financial services, aviation safety, and oil and gas safety.

A number of submissions from regulators during the public consultation on the general scheme of the Bill identified other areas where there may be benefits in lowering or abolishing the threshold. The Commission for Communications Regulation, ComReg, for example, suggested that operators of premium rate phone lines should be put within the scope of this requirement. A number of suggestions were also made at the pre-legislative scrutiny hearings regarding certain accountancy firms and some technology firms. Deputy Shortall mentioned certain smaller companies that handle very large volumes of personal data.

There may be merit to these suggestions. For this reason the Bill provides for a regulation making power to lower or remove the threshold for certain firms or categories of firms subject to a risk assessment and a public consultation. It is the Minister’s view that this targeted approach towards certain high-risk activities is fairer and more reasonable than a blanket lowering or, indeed, an abolition of the threshold.

I should also clarify in this regard comments by Deputies Nash and Shortall that the protection that applies to a worker who reports to their employer applies, just as it always has, regardless of the size of the organisation or whether that organisation has internal reporting channels. The obligation on some employers to have internal channels and procedures is an administrative requirement separate from the right of workers to report wrongdoing to their employer.

On the scope of the Bill, Deputy Shortall raised a concern about the exclusion of interpersonal grievances. The purpose of the Protected Disclosures Act, as set out in its Long Title, is to protect persons making “certain disclosures in the public interest”. Similarly, the directive states that its purpose is to provide for the protection of persons who report breaches of EU law that are harmful to the public interest. Matters of private interest, such as personal grievances between a worker and their employer or a co-worker, lie outside of the scope of this legislation.

This is not to say that personal grievances are not important but we must recognise that such matters are to a large extent protected by the significant corpus of employment law, much of which existed for many decades before the Protected Disclosures Act. It was never the intention that the Act should be an alternative avenue for the airing of personal grievances but in practice there have been some problems in this area.

This issue has now been cast into sharp relief by the judgment of the Supreme Court last December in the case of Baranya v.Rosderra Meats. The court agreed that the intent of the protected disclosures legislation was to protect persons who report wrongdoing in the public interest but found that the Act, as worded, allowed for a broader interpretation that included private grievances. In his ruling in the Baranya case, Mr. Justice Charleton states that the wording of the Act "does not conform with what the ordinary understanding of the protection of whistleblowers requires and, furthermore, it may not be sensible" The Minister agrees and, accordingly, is providing in this Bill under section 6, by way of the insertion of a new section 5A into the principal Act that a matter is not a protected disclosure if it solely affects the reporting person and no other person.

Of course, the Minister recognises that there are situations where the line between a protected disclosure and a personal grievance can be blurred. The wording of this provision is important, so that it is not interpreted too widely and that reports of matters that may be genuinely harmful to the public interest are not ignored. In this regard, the wording of this provision in the Bill means that an isolated incident of, for example, bullying between a manager and an employee would be a private interest and not, therefore, be a protected disclosure and would be dealt with under employment law. However, a report or a series of reports that suggested a wider culture of workplace bullying in the organisation would be protected disclosures.

Staying with the scope of the Bill, Deputy Mairéad Farrell also mentioned the application of the legislation to journalists. The inclusion of third parties within the scope of section 13 of the 2014 Act provides protections for facilitators and other persons such as friends, relatives, business partners and co-workers of the reporting person, and should include any retaliatory action taken against a journalist who assists a reporting person.

Deputy Boyd Barrett asked about the availability of statistics regarding protected disclosures. My officials will provide the Deputy with the information they have as regards the numbers of protected disclosures made in the public sector and on the number of cases heard in the WRC and the courts, as well as statistics on the number of calls made to Transparency International's helpline and the number of clients it has assisted.

Deputy Mairéad Farrell and her colleagues also mentioned supports, including legal aid, for whistleblowers. There is no entitlement in Irish law to legal aid for persons who take cases to the WRC, but it is possible to access civil legal aid in cases before the courts. However, the thresholds are low, at a disposable income of less than €18,000 per annum. It should be noted that, in general, the private solicitors market deals with most civil litigation and cases with merit are accommodated through conditional fee arrangements, such as no foal, no fee. Although it does not provide the full suite of services that might be available through legal aid, the Exchequer does fund Transparency Ireland to provide free legal advice to workers who have made protected disclosures or are contemplating reporting. It is not the Minister’s intention to make any changes to our existing legal aid rules at this time. Deputies will be aware, however, that the Minister for Justice has launched a review of the civil legal aid system and it is in that context that the Minister believes this issue can be given further consideration.

The provision of mental health supports is a discretionary option under the directive. Currently only a few countries, such as the Netherlands and Norway, provide such supports. As raised at pre-legislative scrutiny, the referral of a person for counselling or other mental health treatments is a means by which whistleblowers can be penalised and can be used to call into question their state of mind. There is a need, therefore, to be careful in how such services are presented to and accessed by whistleblowers. The Minister thinks further research into what could be provided in this area is needed, which could help inform consideration of future initiatives in this area.

Finally, I refer to the question of the retrospective application of the Bill, which many Deputies raised as a concern. I will restate what the Minister, Deputy Michael McGrath, said in his opening statement. He is open to making some provision to address how protected disclosures made prior to this Bill coming into effect should be treated. A number of questions on this matter have been referred to the Attorney General for advice.

In conclusion, strong legislation is an important component in any ecosystem designed to support and protect whistleblowers. However, it is also crucial to have the right organisational culture that will encourage workers to speak up without fear of reprisal. This will do more than any legislation, policies or procedures to support and protect whistleblowers. Driving cultural change in organisations is challenging. The House will be aware of the initiatives that are ongoing within the Department of Public Expenditure and Reform, across sectors and across the civil and public service. These initiatives are aligned to support public bodies in their development to be modern, fit-for-purpose and inclusive organisations which support their staff in delivering efficient and effective public policies and services. The Minister and I thank all Members for their involvement in this debate and we look forward to the further deliberations on Committee Stage.

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