Criminal Justice Act 2011

20.

Protection for employees from penalisation for disclosing information relating to relevant offences.

20.— (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee—

( a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

( b) for giving notice of his or her intention to do so.

F4 [ (1A) Subsection (1) does not apply to the making of a disclosure that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. ]

(2) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).

(3) Nothing in paragraphs (a), (c), (d), (e) and (f) of the definition of “penalisation” shall be construed in a manner which prevents an employer from—

( a) ensuring that the business concerned is carried on in an efficient manner, or

( b) taking any action required for economic, technical or organisational reasons.

(4) ( a) If penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in paragraph (a) of the definition of “penalisation”, the employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian, with his or her consent) may institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal and, if the employee or his or her parent or guardian, as the case may be, does so, a complaint of such dismissal may not be presented to a rights commissioner under paragraph 1(1) of Schedule 2 .

( b) If an employee (or, in the case of an employee who has not reached the age of 18 years, the employee’s parent or guardian, with his or her consent) presents a complaint to a rights commissioner under paragraph 1(1) of Schedule 2 in respect of a dismissal referred to in paragraph (a), the employee or his or her parent or guardian, as the case may be, may not institute proceedings in respect of that dismissal under the Unfair Dismissals Acts 1977 to 2007 or to recover damages at common law for wrongful dismissal.

(5) For the purposes of this section and Schedule 2 , a reference to “dismissal” includes—

( a) a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007, and

( b) a dismissal wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003.

(6) In this section, section 21 and in Schedule 2

“contract of employment” means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

“disclosure”, in relation to an employee, means a disclosure by the employee to a member of the Garda Síochána of information which he or she knows or believes might be of material assistance in—

( a) preventing the commission by any other person of a relevant offence, or

( b) securing the apprehension, prosecution or conviction of any other person for a relevant offence;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes—

( a) a person (other than an employee of that person) under whose control and direction an employee works, and

( b) where appropriate, the successor of the employer or an associated employer of the employer;

“penalisation” means any act or omission by an employer, or by a person acting on behalf of an employer, that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

( a) suspension, lay-off or dismissal,

( b) the threat of suspension, lay-off or dismissal,

( c) demotion or loss of opportunity for promotion,

( d) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

( e) the imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty),

( f) unfair treatment,

( g) coercion, intimidation or harassment,

( h) discrimination, disadvantage or adverse treatment,

( i) injury, damage or loss, and

( j) threats of reprisal.

Annotations

Amendments:

F4

Inserted (15.07.2014) by Protected Disclosures Act 2014 (14/2014), s. 24(1) and sch. 4 part 1 item 13, S.I. No. 327 of 2014.

Editorial Notes:

E2

Redress and appeal procedures in respect of requirements in subs. (1) provided (1.10.2015) by Workplace Relations Act 2015 (16/2015), ss. 41, 44 and sch. 5 part 1 ref. 23, sch. 6 part 1 item 29 and sch. 6 part 2 item 29, S.I. No. 410 of 2015, as last amended (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 37, S.I. No. 435 of 2016.

E3

Subs. (1) included in definitions of “employment enactment” and “relevant enactment” (1.08.2015) by Workplace Relations Act 2015 (16/2015), s. 2 and sch. 1 part 2 item 14, S.I. No. 338 of 2015, with the following effects:

• Authorised officers or inspectors under employment enactments deemed to be appointed under Workplace Relations Act 2015 (16/2015), s. 26(2) and subject to termination under s. 26(4).

• Powers of inspectors for purposes of relevant enactments defined in Workplace Relations Act 2015 (16/2015), s. 27.

• Workplace Relations Commission, an inspector or an adjudication officer authorised to disclose employer’s registered number or employee’s PPSN to enable Labour Court to perform functions under relevant enactments by Workplace Relations Act 2015 (16/2015) s. 31(5).

• Power of Workplace Relations Commission and official body to disclose information to each other concerning the commission of offence under relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 32.

• Power of Workplace Relations Commission and contracting authority to disclose information to each other concerning the commission of offence under employment enactment/ relevant enactment provided by Workplace Relations Act 2015 (16/2015), s. 33.

• Powers of Minister to prosecute under relevant enactments transferred to Workplace Relations Commission and references construed by Workplace Relations Act 2015 (16/2015), s. 37, as amended (8.02.2016) by Credit Guarantee (Amendment) Act 2016 (1/2016), s. 19(a), commenced on enactment.

• Functions of EAT to hear claims under employment enactments transferred to Workplace Relations Commission and references to EAT construed by Workplace Relations Act 2015 (16/2015) s. 66(1), (2), not commenced as of date of revision.