Brendan Howlin (Wexford, Labour) | Oireachtas source

I thank the Senator and her colleagues for tabling this important amendment. I referenced the matter on Second Stage. I note that the amendment is long and detailed and it is obvious that a lot of thought has gone into its drafting. In order to be helpful to the House I shall set out the provenance of interim relief in the whole area of whistleblowing legislation.

The potential for granting interim relief is an important protection available to whistleblowers who claim that they have been dismissed for whistleblowing under section 9 of the groundbreaking UK whistleblowing protection legislation, the Public Interest Disclosure Act 1988. In the UK if an employment tribunal concludes that an employee is likely to win his or her case at a full hearing it, that is the Employment Tribunal of the UK, can make an order pro tem that employees be re-employed or that the employment is deemed to continue so the employee will continue to receive salary.

The experience in the UK is that the granting of this protection in a whistleblowing case is relatively rare. The employment tribunal must be satisfied that there is more than a reasonable expectation that the case will succeed at a full hearing of the tribunal. Moreover, the tribunal's assessment must be made in circumstances that the tribunal does not seek to prejudge the outcome of issues which are not properly set out before it at that stage, before the full hearing adduces all of the evidence and all of the matters are fully tested and heard.

Claims for interim relief would be expected to arise only in a very small minority of cases. Granting of interim relief is likely to be the exception rather than the rule. Notwithstanding, I think there might be cases where it is justified.

As I said on Second Stage, Ireland is not like the UK inasmuch as the judicial capacity of our labour relations bodies is circumscribed by the Constitution. The issue must therefore be assessed in the context of the legal and constitutional structures for employment rights that are operated in this State.

My Department has been in detailed consultation with the Attorney General on this issue. I am well disposed to examining if we can find some way in which interim relief could be provided, but there are a number of constitutional hurdles. One is that to prejudge a case before all evidence is adduced is very difficult in our jurisdiction, because under the Constitution the issue of bias arises in the same tribunal coming to a conclusion subsequently. There are other issues in terms of costs that might arise that would be determined not by a court but by a tribunal set up under law. On the basis of the consultations my Department has had, and is continuing to have, with the Office of the Attorney General and the Department of Jobs, Enterprise and Innovation, which has overall responsibility for employment rights and employment legislation, the legal feasibility of doing what I would like to do is being fully examined. With the permission of the Senator and the House, I seek the opportunity to continue that examination to see if I can find a solution before the Bill progresses further in the House.