Ciara Conway (Waterford, Labour)
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267. To ask the Minister for Public Expenditure and Reform if he will provide more detail on protections afforded to whistleblowers in the public service including their rights and the way they will be afforded protection as claims are investigated; the steps being taken to monitor and replace poorly performing managers across the public service; and if he will make a statement on the matter. [48915/13]

Brendan Howlin (Wexford, Labour)
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The protections set out in Part 3 of the Protected Disclosures Bill 2013 are the same for all workers regardless as to whether they are employed in the public or private sector.

Sections 11 and 12 of the Bill provide protections against unfair dismissal and penalisation falling short of a dismissal respectively. In both instances the extent to which protections under these sections can be invoked will be determined by the relevant elements of the State’s industrial relations machinery such as Rights Commissioners, the Labour Court or the Employment Appeals Tribunal as appropriate. In such cases all of the usual rights, processes and procedures associated with that machinery will apply.

Sections 13, 14 and 15 of the Bill provide protections the eventual determination of which will fall to be dealt with by the Courts and in which cases all of the usual rights, processes and procedures of the legal system will apply. Section 13 provides that where a person suffers detriment as a consequence of the actions of a third party that person has a right of action in tort against the third party. Section 14 provides that a person shall not be liable in damages, or subject to any other relief in civil proceedings, in respect of the making of a protected disclosure. Section 15 provides that in a prosecution of a person for any offence prohibiting or restricting the disclosure of information it is a defence for the person to show that the disclosure is, or is reasonably believed by the person to be, a protected disclosure.

Section 16 of the Bill provides that a person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person’s duties, must take all reasonable steps to avoid disclosing to another person any information that might identify the person by whom the protected disclosure was made. A failure to comply is actionable by the person by whom the protected disclosure was made if that person suffers any loss as a result. The requirement to protect the identity of the discloser is however subject to a number of necessary and pragmatic qualifications such as the necessity to effectively investigate the wrongdoing or the prevention of a crime or the prosecution of a criminal offence.

In addition to the protections set out in Part 3 of the Bill section 21 requires every public body to establish and maintain procedures for dealing with protected disclosures made by workers employed by the public body and that the public body shall provide written information relating to the procedures to its workers.

In this regard it should be noted that the Minister for Jobs, Enterprise and Innovation has, at my request, formally requested the Labour Relations Commission (LRC) to prepare a Code of Practice for dealing with protected disclosures. The Code of Practice is to be prepared in consultation with both employer and employee representative groups and the public service, as a significant employer, will be represented in that process. The Code of Conduct will inform and guide the preparation of the procedures to be established and maintained by public bodies in accordance with section 21 of the Protected Disclosures Bill.

As Minister for Public Expenditure and Reform, I have overarching responsibility for the public service. However, each individual sector has responsibility for the management of performance in that sector. In respect of the Civil Service, as part of the strengthened approach to managing underperformance, my Department has been actively engaged with HR units across the Civil Service to support and train managers in the better management of underperformance.

My Department has to date:

- provided a framework on how to address underperformance

- provided training for all HR and training units in all Departments/Offices on the framework

- strengthened links between the Performance Management and Development System and the disciplinary process in operation in the Civil Service

- developed better technical structures for the completion of PMDS throughout the Civil Service

As a result, managers should be better equipped to deal with underperformance.

It is the intention of my Department, as part of the Haddington Road agreement, to review the effectiveness of underperformance procedures and how under performance is managed. Under the Haddington Road Agreement, performance agreements will be developed for senior levels across the public service.

In the case of the Civil Service, this will be underpinned by the revised Assistant Secretary Competency Model approved by Government last month.

There is also a commitment to streamline the procedures to deal with underperformance so that they are more effective. Performance improvement action plans will be developed for individuals identified as having performance issues. These action plans will set out the performance issues that need to be addressed over a defined timeframe. Where performance does not improve, disciplinary procedures will apply.