Prevention of Corruption (Amendment) Act 2010
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Insertion of new section 8A into Act of 2001. |
4.— The Act of 2001 is amended by inserting the following section after section 8: | |
“Protection for persons (including employees) reporting offences under Prevention of Corruption Acts 1889 to 2010. | ||
8A.— (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to an appropriate person of his or her opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 may have been or may be being committed unless— | ||
(a) in communicating his or her opinion to that appropriate person did so— | ||
(i) knowing it to be false, misleading, frivolous or vexatious, or | ||
(ii) reckless as to whether it was false, misleading, frivolous or vexatious, | ||
or | ||
(b) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading. | ||
(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to any other form of relief. | ||
(3) A person who makes a communication under subsection (1), which the person knows to be false, that a person may have committed or may be committing an offence under the Prevention of Corruption Acts 1889 to 2010 shall be guilty of an offence. | ||
(4) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any enactment or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is an appropriate person or not) of an opinion of the kind referred to in subsection (1). | ||
(5) 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, for— | ||
(a) having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to an appropriate person unless the employee— | ||
(i) in communicating his or her opinion to that appropriate person did so— | ||
(I) knowing it to be false, misleading, frivolous or vexatious, or | ||
(II) reckless as to whether it was false, misleading, frivolous or vexatious, | ||
or | ||
(ii) in connection with the communication of his or her opinion to that appropriate person, furnished information that he or she knew to be false or misleading, | ||
or | ||
(b) giving notice of his or her intention to do the thing referred to in paragraph (a). | ||
(6) Schedule 1 shall have effect in relation to an alleged contravention of subsection (5). | ||
(7) An employer who contravenes subsection (5) shall be guilty of an offence. | ||
(8) A person guilty of an offence under subsection (3) or (7) shall be liable— | ||
(a) on summary conviction, to a fine not exceeding €5,000 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 3 years or both. | ||
(9) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence referred to in subsection (8) as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (8)(a) and the reference in subsection (2)(a) of that section to the penalties provided for by subsection (3) of that section shall be construed and have effect accordingly. | ||
(10) Any person who, upon examination on oath or affirmation authorised under paragraph 3(1) of Schedule 1, 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 shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or both. | ||
(11) A person to whom a notice under paragraph 3(2) of Schedule 1 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 shall be guilty of an offence and liable on summary conviction to a fine not exceeding €5,000. | ||
(12) 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 1, 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, | ||
(b) a sitting of the Labour Court was held on that day and at that time and place, and | ||
(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, 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 (11), be evidence of the matters so stated without further proof unless the contrary is shown. | ||
(13) For the purposes of this section, 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 . | ||
(14) Schedule 2 shall have effect for the purposes of a communication referred to in this section made to an appropriate person who is a confidential recipient. | ||
(15) Paragraphs (a), (c), (d), (e) and (f) of the definition of ‘penalisation’ in subsection (16) 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. | ||
(16) In this section— | ||
‘appropriate person’, in relation to a communication referred to in this section made by a person, means a communication to— | ||
(a) in any case, a member of the Garda Síochána, | ||
(b) in any case where the opinion concerned of the kind referred to in subsection (1) was formed in the course of the person’s employment— | ||
(i) the person’s employer, or | ||
(ii) a person nominated by such employer as the person to whom a communication of that kind may be made, | ||
(c) without prejudice to the generality of paragraphs (a) and (b), in any case where the person is in a state other than the State— | ||
(i) a diplomatic or consular officer of the State who is in that state, or | ||
(ii) a member of a law enforcement agency of that state, | ||
or | ||
(d) in any case where the person wishes to make the communication in confidence, to a confidential recipient; | ||
‘confidential recipient’ has the meaning assigned to it by paragraph 1 of 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; | ||
‘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, including selection for redundancy, | ||
(g) coercion, intimidation or harassment, | ||
(h) discrimination, disadvantage or adverse treatment, | ||
(i) injury, damage or loss, and | ||
(j) threats of reprisal.”. |