knowledge 13 February 2024 |

A right to silence in an employment context?

The recent decision of Mulcahy J in Electricity Supply Board v Sharkey [2024] IEHC 65 considered whether an employee’s constitutionally protected ‘right to silence’ can be relied on in the teeth of an employer’s demand that the employee respond to a request for information. Asked whether the right to silence permits an employee to lawfully refuse to comply with an employer’s directions, the High Court answered with ‘a qualified yes’. 

While the case might be considered fact-specific, the comments of the High Court should be considered by employers in the context of investigative or disciplinary proceedings which overlap with criminal complaints. 

Factual background 

The facts can be stated within a narrow compass. Allegations had been made by two developers that certain ESB employees had been demanding cash or other consideration for expediting the completion of works. ESB reported the allegations to the Gardaí Síochána, and a criminal investigation into alleged bribery and corruption was commenced. Once the allegations were in the public domain, ESB wrote to the defendant employee requiring him to provide answers to certain questions relating to any involvement in the alleged offences. The letter referred to the defendant’s contractual obligation to cooperate with ESB and, in particular, his obligation to ‘obey all reasonable and lawful directions’ given on behalf of ESB. The defendant’s solicitor noted the ongoing criminal investigation and that any statements made by him to ESB might be relied on in any prosecution. Accordingly, he confirmed that, while any wrongdoing by him was denied, he refused to answer questions, invoking his right to silence. 

Without commencing any disciplinary proceedings, ESB initiated proceedings seeking a declaration that the refusal to answer questions amounted to a repudiation of the contract of employment such that he could be treated as having been summarily dismissed. It contended that any concern of the defendant that his answers to ESB might incriminate him was of no concern to it, and did not entitle him to fail to perform his employment contract. His invocation of his right to silence was premature and was one to be invoked in any criminal trial in which it is sought to rely on his answers to ESB’s questions.

Decision 

Mulcahy J noted that, while ESB had sought to identify the privilege against self-incrimination as being confined to the prevention of state abuse (in the form of ill-treatment, or the procuring of unreliable confessions) and as going no further than is necessary to prevent such abuses, the case law did not support the notion that the privilege could only be asserted where its absence runs a risk of state abuse, instead being an integral feature of a fair trial.

He noted the authorities are uniform in confirming that the privilege is not absolute. He referred to a series of cases in which the courts proceeded on the assumption that the constitutional right to fair procedures may entitle employees to delay engagement with a disciplinary procedure rather than risk incriminating themselves in pending criminal proceedings. The case law recognised the right to silence as a constitutional right engaged where there is a risk that a person may be compelled to provide testimony which may incriminate them. What requires to be considered is, first, whether the person is acting under a compulsion, and second, whether there is a risk that the testimony provided may be relied on in a criminal trial. 

Mulcahy J stated that “[I]n order to determine whether he can be required to answer the questions while the criminal investigation is in being, [ESB] must, in my view, commence a process in which it carries out an assessment of the competing interests involved, which assessment can, if necessary, be reviewed by the Court”. He observed that it would not be appropriate for the court to conduct that balancing exercise itself at this stage on the basis of limited agreed facts, being not solely a question of law. 

This reflects the comments of Clarke J (as he then was) in Wicklow County Council v O’Reilly [2006] IR 623 in which Clarke J observed that there is ‘no hard and fast rule as to how contemporaneous civil and criminal proceedings arising out of the same matter should be progressed’. He went on to note the importance, on the one hand of allowing the plaintiff in a civil case to achieve a timely resolution of those proceedings, and the need to balance this, on the other hand, with any real risk that prejudice might be caused to the criminal proceedings, noting that prejudice would typically be considered in the context of any compulsion in issue.

In Sharkey, however, Mulchay J noted that in carrying out that balancing exercise, ESB would have to consider the importance to it of being able to pursue the matter in advance of the conclusion of the Garda investigation. He went on to observe that the fact the defendant had remained in employment without being suspended was capable of being regarded as a factor which increases the urgency of ESB proceeding with its enquiries - if his continuation in employment without investigation could be particularly disruptive or demoralising - or as a factor which suggested that delay was acceptable. He also noted that it was ‘at least questionable’ whether the defendant’s reliance on his constitutional rights could continue to be available to him indefinitely if the criminal investigation was not closed. 

Concluding remarks 

As such, in the particular context of this case, Mulcahy J decided that the defendant was entitled to refuse to comply with ESB’s directions for the time being, which entitlement would cease once the concurrent criminal investigation is at an end, or when ESB could establish that its interest in insisting on the performance of the defendant’s contractual obligations outweighs the risk of infringement of the defendant’s right to silence. This reflects the previous case of Mooney v An Post [1998] 4 IR 288, in which Barrington J in the Supreme Court noted that an employer was entitled to a candid response when misgivings were put to an employee, although observed that it was “of course the [employee’s] right to remain silent while the criminal proceedings were hanging over him”. 

The case supports the proposition that there is no general right to silence in an employment context and employees are not entitled in disciplinary proceedings to simply say to their employers ‘prove your case’. Nonetheless, where a criminal investigation is extant, an employee might seek to invoke the right to silence in internal investigative or disciplinary matters where these overlap with the criminal complaint. Where an employer is conducting an assessment of competing interests of the sort envisaged by Mulcahy J, it would be prudent to act on legal advice and to proceed with caution where it determines that it is necessary for it to demand answers from an employee in the teeth of an ongoing criminal investigation. 

Even where an employee does invoke the right to silence in the course of a disciplinary process, citing a parallel criminal complaint, it is not the case that disciplinary proceedings must “remain at a standstill to await the outcome of a criminal investigation in every case”, as the Egan J pointed out in the even more recent case of Rajpal v HSE (2024 IEHC 70). In that case, the Plaintiff had provided “no information for the court to assess on a practical basis whether the proposed investigation is likely to infringe on his rights in the context of any garda investigation”. The Plaintiff in that case sought to argue that an investigation into allegations of sexual assault (which allegations amounted to a criminal offence) should apply the criminal standard of proof (being proof ‘beyond a reasonable doubt’), rather than the civil standard (proof ‘on the ’balance of probabilities’). However, the High Court rejected this, noting it would place an “unacceptable burden” on employers and upon complainants. Egan J held that while the allegations had potentially grave implications for the plaintiff’s livelihood and reputation, the facts could be dealt with on the balance of probabilities, “bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issue to be investigated”. 

It is interesting to speculate on how this judgment might interact with the right of employees to legal representation in the context of workplace investigative or disciplinary proceedings. While it did not arise on the facts of the Sharkey case, the principles remain as set out by the Supreme Court in McKelvey v Irish Rail (on which, see our briefing here) in which the Court indicated that, when assessing whether legal representation may be necessary to ensure a fair hearing, the fact that the charges may also constitute a criminal offence was “of some marginal relevance but… of limited weight”.