Michael McGrath (Cork South Central, Fianna Fail) | Oireachtas source

I thank Senator Flynn for raising these issues. On the proposal to include bringing vexatious proceedings against a worker in the definition of penalisation, it is already a penalty under section 24 of the Bill. It does not need to be specifically included in the definition of penalisation.

My officials gave detailed consideration to the pre-legislative recommendation on medical and psychiatric referrals. They consulted the Attorney General who highlighted that the proposed amendment is not the language of the EU whistleblowing directive. The Attorney General advises that there is a risk that such an amendment could be interpreted as narrowing the scope of application of this form of penalisation. I know that is not the intention behind the amendment but the view of the Attorney General is that it could actually narrow the scope of it. That would be incompatible with the directive. I should point out that the issue is not whether the referral is founded or unfounded; it is whether the referral is a form of penalisation for having made a report. The burden of proof to show that the referral was based on justified grounds will now fall on the employer, as required by the directive. The employer must show that the referral was not prompted by the making of the report but was made for another reason. That is a very significant shift that is provided for in the Bill. Therefore, I do not propose to accept the amendments. We have adequately addressed the issues in the Bill.