This case was an appeal brought by the defendant university. The appeal was against an order of the High Court which stayed an investigative process concerning a complaint against the plaintiff. A complaint had been made against the plaintiff, and 8 other staff members (“the respondents”), by a colleague (“the complainant”) for bullying and harassment.

However, a disagreement arose between the complainant and the respondents as to what procedure/policy applied to the dispute. As a result, the Labour Court recommended an independent external investigator, Ms. Hughes, be appointed.

Ms. Hughes wrote to the plaintiff on the 10th April 2017, enclosing documents, terms of reference and advising the plaintiff that her intention was to interview each of the respondents to afford them the opportunity to respond to the grievances in their case. The plaintiff took issue with the delay in the complaints being taken against him and the terms of reference provided. The plaintiff also took serious issue with the fact that Ms. Hughes had previously acted as trade union representative on behalf of the complainant. (Ms. Hughes had been the regional secretary of SIPTU between 1990 and 1997).

When this last point was raised Ms. Hughes made it clear that she would continue to exercise her role regardless. As a result, the plaintiff took injunctive proceedings to prohibit the investigation continuing and this injunction was granted on the basis that the plaintiff had established a fair question to be tried and the interests of justice required same. The plaintiff employee had also argued that the terms of reference should have been discussed more thoroughly with him - that there had been some kind of unequal treatment in this regard.

The Appellate Court stated that any person facing an investigation into allegations of bullying against them may, understandably, believe that the investigator is biased in favour of the complainant, particularly given the facts in this case, where there had, albeit 20 years before, a representational relationship between the investigator and the complainant employee.

The Court held that the test to be deployed in this matter is an objective one, namely; would a reasonable and fair-minded observer with full knowledge of all of the facts apprehend bias on the part of the proposed adjudicator? The Court held that the trial judge had erred in law and in fact by finding that the plaintiff had established a serious issue to be tried concerning objective bias, and allowed the appeal to lift the stay on the investigative process. The representation was a long time ago and the terms of reference were not discussed with the plaintiff, complainant, defendant or any of the other respondents. In appointing the investigator, the Labour Court had concluded:

“It is the decision of the Court that the investigator, having reviewed the extensive documents submitted to the Court and having consulted with the parties, should determine the terms of reference and the scope of the investigation. In doing so, the investigator must have regard to the University’s policies, including its Grievance Procedure and its Staff Anti-Bully Policy. The investigator’s decision in these matters will be final. In carrying out the investigation, the investigator must have regard to fair procedures and natural justice rights of both the Claimant and the alleged wrongdoers.”

In the circumstances, Ms. Justice Irvine ruled that the two points raised - a representational one from many years before and terms of reference that were entirely in the gift of the investigator - could not be viewed by any reasonable observer as indicating a serious charge of bias in the investigative process:

"79. The question then remains as to whether the two principal factors to which I have earlier referred and discounted as giving rise to a reasonable apprehension of bias; namely the prior professional relationship between the complainant and Ms Hughes and the failure to afford Professor Nasheuer equal treatment in respect of the terms of reference, can when considered cumulatively be said to raise a serious issue of objective bias in these proceedings. I should, however, here restate that I do not accept that this is what the trial judge did in the present case. I believe she discounted entirely the past professional relationship between Ms Hughes and the complainant but relied upon a number of matters concerning the terms of reference as the basis for her conclusion that Professor Nasheur had established a serious issue to be tried in relation to objective bias.

"80. There may well be cases in which the courts have considered in greater detail than I intend to do now the circumstances in which an accumulation of factors, which individually do not give rise to an apprehension of bias, have collectively been deemed sufficient to raise such an apprehension. Suffice it to state that I do not consider the cases cited in the submissions filed on behalf of Professor Nasheuer sufficient to reach such a conclusion in this case. On the facts of this case I find myself coming to a similar conclusion as that reached by Denham J.in Bula when she said, concerning four of the seventeen links which the applicants had argued should be considered cumulatively, “Four noughts are still nothing”. In this case I would say two noughts are still nothing."
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/5474eb47e8c7b8328025825d003d93d8?OpenDocument