Summary
The High Court recently considered whether an employee is entitled to refuse to answer his employer’s questions during an internal investigation whilst a criminal investigation into the same matters is ongoing.
The court determined in ESB v Sharkey [2024] IEHC 65 that the employee at the centre of the investigation was entitled to refuse answer his employer's question but that this entitlement is not open ended. It ceases once the criminal investigation ends or if the employer can establish that those questions must be answered while the investigation is ongoing by balancing the employee's right to silence against the employer's own need for answers.
Facts
The employee is a network technician with ESB. In 2022 the ESB were made aware by two property developers that certain ESB employees were demanding cash payments from customers in exchange for expediting the completion of ESB related works. ESB reported these allegations to an Garda Siochana, who informed the employee that he was being investigated for bribery and corruption in his work for ESB.
As part of an internal investigation, the ESB wrote to the employee asking him whether he had ever asked for or received payment from a third party in connection with the performance of his duties.
The employee’s solicitor replied to ESB’s letter stating that the employee was advised not to reply to these questions in view of the ongoing criminal investigation and the employee's right to silence. The letter also denied any wrongdoing on part of the employee.
The Issue
Proceedings were issued in April 2023 and it was agreed by the parties that the following points of law were to be considered by the Court:
Did the employee's right to silence and/or privilege against self-incrimination permit him to lawfully refuse to comply with the directions issued to him by the ESB in its letter?
If the answer to the first question is "No" does the employee's refusal to comply with directions issued to him by the ESB in its letter amount to a repudiatory breach of his employment contract such that the ESB was entitled to treat it as terminated.
If the answer to the second question is Yes, then the issue arises on what date the contract of employment terminated.
The ESB claimed that it was entitled to the information sought by reason of the employer/employee relationship and referred to the employee’s contractual obligations to "obey all reasonable and lawful directions" given on behalf of the ESB. The ESB accepted that Mr Sharkey was the subject of a criminal investigation and also accepted that they could be required to provide An Garda Siochana with any information provided to it by the employee by reason of section 19 of the Criminal Justice Act 2011.
The employee accepted that there is no general right to silence in an employment contract, however he claimed that as he was the subject of a Garda investigation, his constitutional right to silence and/or his privilege against self-incrimination in that criminal investigation meant that his refusal to answer his employer's questions did not amount to a repudiation of his employment contract.
Decision
The plaintiff argued that the defendant's reliance on the privilege against self-incrimination was misconceived as the case law established there was no entitlement to a right to silence in an employment context. The defendant acknowledged that an employee cannot refuse to answer an employer's question basis that the answer may expose him to a sanction. Rather his argument is that his privilege against self-incrimination in the context of a criminal investigation entitled him for the time being to refuse to answer his employers' questions.
The court considered a long line of cases addressing the issue of a right to silence and determined that the employee was entitled to refuse to comply with the ESB’s directions whilst the criminal investigation is ongoing, but that that entitlement would cease when the criminal investigation ended or when the ESB could establish that its interest in insisting on his performance of his contractual obligations outweighs the risk of infringement of his constitutionally protected right to silence.
Key takeaways
The decision of the High Court in this case provides further clarity on an employee's right to silence during an investigation while criminal proceedings are ongoing. Employers may find that an employee's right to silences means that they will be unable to substantially progress a workplace investigation once a criminal investigation has commenced.
For more information, please contact Paul Gough, Sinead Grace or your usual contact in Beauchamps.