41.— (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 having made a protected disclosure, unless the employee—

(i) in making the disclosure did so knowing it to be false or misleading, or

(ii) in connection with the disclosure, furnished information that he or she knew to be false or misleading,

(b) for giving evidence in any proceedings under financial services legislation, or

(c) for giving notice of his or her intention to do any of the things referred to in paragraph (a) or (b).

(2) Paragraphs (a), (c), (d), (e) and (f) of the definition of “penalisation” in section 37 shall not 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.

(3) Schedule 5 has effect in relation to an alleged contravention of subsection (1) and matters consequential on such a contravention.

(4) An employer who contravenes subsection (1) commits an offence and is liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 2 years, or both.

(5) (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” in section 37, 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 the employee’s 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 5.

(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 the employee’s consent) presents a complaint to a rights commissioner under paragraph 1(1) of Schedule 5 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.

(6) In proceedings under Schedule 5 before a rights commissioner or the Labour Court in relation to a complaint that subsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in making a protected disclosure.

(7) Any person who, upon examination on oath or affirmation authorised under paragraph 3(1) of Schedule 5, wilfully makes any statement which is material for that purpose and which the person knows to be false or does not believe to be true commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both.

(8) A person to whom a notice under paragraph 3(2) of Schedule 5 has been given and who refuses or wilfully neglects to attend in accordance with the notice or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates commits an offence and is liable on summary conviction to a class A fine.

(9) A document purporting to be signed by the chairperson or a deputy chairperson of the Labour Court stating that—

(a) a person named in the document was, by a notice under paragraph 3(2) of Schedule 5, required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document, or both, and

(b) a sitting of the Labour Court was held on that day and at that time and place, and the person did not attend before the Labour Court pursuant to the notice or, having so attended, refused to give evidence or refused or wilfully failed to produce the document,

shall, in a prosecution of the person under subsection (8), be evidence of the matters so stated without further proof unless the contrary is shown.

(10) Summary proceedings for an offence under subsection (7) or (8) may be brought and prosecuted by the Minister for Jobs, Enterprise and Innovation.