Katherine Zappone (Independent) | Oireachtas source

I move amendment No. 11:

In page 13, to delete lines 11 to 13 and substitute the following:
“(b) the investigation of the relevant wrongdoing concerned shows that the employee acted in bad faith,”.

I understand the reason these amendments are grouped together and some of the Minister's amendments address some of our concerns. We tabled an amendment on the previous occasion that was ruled out of order because it could involve a potential charge on the Exchequer.

While we did not debate it, the Leas-Chathaoirleach graciously allowed me to comment on section 11. I noted that in section 5(7), in defining whether disclosure is protected, motivation is listed as irrelevant but section 11 shows it to be relevant in cases of unfair dismissal. That does not seem to make any sense. We propose this amendment to provide a bad faith standard, similar to that which exists in the UK, rather than to bring in the issue of motivation.

The UK legislation incorporates the bad faith standard alongside the 25% reduction as the Minister does in his own amendment to the section. I fully support his amendment because it potentially increases the amount of compensation the Minister had initially envisaged. The bad faith standard, however, provides a higher threshold of protection for the whistleblower than does a reference to motivation. There is a higher threshold of protection when one moves from 50% to 25% as well. Our argument here is simply that if an employee makes a public interest protected disclosure, and is dismissed as a result, the motivation should be irrelevant because the overriding principle is to promote disclosures in the public interest through ensuring that there is no penalisation.