The Bar of Ireland welcomes the opportunity to come before the committee as part of its ongoing examination and analysis of the 2021 general scheme of the Bill in question and seeking to amend what has already been an important and impactful protected discourse regime. Effective transposition of any EU directive requires a thorough understanding of the local and national context and that is so with respect to EU Directive 2019/1937, which is being transposed by way of this amendment Bill. As part of its first session, the committee heard testimonies and contributions from Mr. John Wilson, Mr. Noel Grace and Mr. Philip Brennan of Raiseaconcern. All those contributions pointed to the need and value of a protected disclosure regime in the public interest and in the interests of those directly involved.
As a representative body of lawyers, the Bar of Ireland is not as concerned with the rationale and policy behind certain legal protections and will leave that space for other capable invitees, some of whom are with the committee today. Instead, our submission has focused on ways in which the proposed 2021 Bill could be improved from a legal drafting and utility point of view. Clear and effective legislation makes our jobs as lawyers much easier when advising clients. It has the potential to prevent or reduce disputes, remove uncertainty and empower individuals. Therefore, the purpose of our contribution is to highlight particular areas which we believe could be improved as well as some areas which we fully support. These are set out more comprehensively in our written submission but our key observations can be summarised as follows. The first observation relates to the definition of a worker. The council is of the view that the proposed Bill could be improved by a more comprehensive and inclusive definition for the persons entitled to whistle-blowing protection. Therefore, the council recommends that the term "worker" be replaced by "reporting/disclosing person" and to enumerate the term a "reporting/disclosing person", as is the model of the Protected Disclosures Act and the proposed Bill at present, with the various categories of persons who ought to be caught by the protections. The reason we say this is that jurisprudence and other statutory definitions of "worker" general relate to relationships narrower than what is envisaged in the proposed Bill. The expansion of the understanding of "worker" to include a shareholder or applicant for a role is of some concern on the basis that to stretch the meaning of "worker" beyond its traditionally understood meaning could result in persons who would otherwise be protected not believing they classify as a worker and therefore not making a protected disclosure.
I will speak now about the treatment of interpersonal grievances. As the committee will be aware, the EU directive and purpose of the amendment relates to breaches of EU law, and the wide scope that entails. Head 5 of the Bill sets out an exclusionary definition taking inspiration from recital 22 of the directive on the issue of interpersonal grievance, as follows:
A matter is not a relevant wrongdoing if it is a matter concerning interpersonal grievances exclusively affecting the reporting person, namely grievances about interpersonal conflicts between the reporting person and another worker and the matter can be channelled to other procedures designed to address such matters.
The council, in principle, welcomes the addition of this exclusion and expects that it will provide much needed clarity to certain disputes. The use of the word "exclusively" is important as it narrows the scope of the exclusion. Therefore, for example, an employee could be protected if they made a disclosure concerning their boss who they claimed was bullying them if they also believed and disclosed that the boss was bullying other employees. This type of disclosure is not captured by the exclusion and would arguably be a protected disclosure depending on the particular circumstances.
The council recommends that efforts be made to clearly define the term "interpersonal grievance". Failure to provide such a definition could lead to differing views amongst employers and employees as to what qualifies as interpersonal. The legislation should provide for an objective definition with less room for individual interpretation.
The council advises the repeal of section 13(2) of the Protected Disclosures Act 2014, which creates a mandatory exclusion on persons bringing a claim to the Workplace Relations Commission for redress for having been dismissed or penalised at work and a tort claim in the courts based on detriment suffered by them arising out of their making of a protected disclosure. This section goes too far in preventing a form of double recovery by a whistleblower. It is possible to envisage a situation in which a person has been dismissed for whistleblowing, but against whom a detriment is also caused. It is more in keeping with the purposes of the directive for the availability of remedies to be maximised. We recommend that this provision be repealed, particularly as the courts are well equipped to address legal issues concerning the crossover of reliefs with the Workplace Relations Commission.
Head 9, subsection (11) of the proposed Bill seeks to amend section 6 of the Protected Disclosures Act 2014, which provides for a public disclosure by a worker to their employer, and states: "The reporting person shall cooperate, where required, with any investigation or any other follow up procedure initiated in accordance with the proposed section 6(9)(d)." This subsection is vague as to what type of co-operation is envisaged. Further, the consequences for such a failure are also unclear. While the Council approves of the general approach in heads 9 and 10 of the general scheme, it is concerned about the ambiguity within the proposed sections, as I have set out, which could benefit from greater clarity as the proposed Bill is progressed.
The Council supports the creation of the protected disclosures office. This is in the interests of an efficient and whistleblower-friendly regime, identifiable by the public through appropriate awareness raising and adequately resourced. The council views this as especially worthy development in light of the increased complexity and range of regulatory matters over which protected disclosures can now be made under this new regime. As the directive aims to cover breaches of European law in a number of complex areas, including public procurement, animal and food safety and many others, the council expects the protected disclosures office will act as a safe and effective clearing house, which would simplify the process for potential whistleblowers.
Finally, the council recommends the provision of legal aid to certain persons making or contemplating making a protected disclosure given the complexity and sensitivity of this area. The council views the provision of legal aid and psychological support as consistent with the ethos of the directive, which seeks to empower would-be reporting persons into making a fully informed decision as to whether they will make a report or protected disclosure and for them to be supported thereafter. We look forward to engaging with the committee and our colleagues here on this important discussion.