High Court granted interlocutory injunction restraining suspension, finding strong case dismissal was unlawful due to reliance on non-contractual policies, inconsistent disciplinary procedures and absence of prior warnings.

In 2016, the Plaintiff and another individual set up a company trading as ‘The Unit’, to design and develop free-to-play games, together with related marketing and project management services. These games were then handed over to companies (the Defendant was one) who would licence them to well-known betting companies. The games themselves were developed by The Unit.

Horse’s Mouth Limited T/A Sportcaller (the Defendant) was founded by Mr. Cillian Barry, and he remained a director until 20 March 2024, at which point he was removed as part of the sequence of events giving rise to these proceedings. Mr Conor Durnin (the Plaintiff) was recruited by Mr. Barry in 2017. The plaintiff and his co-founder of The Unit each held a 50% shareholding in The Unit and were directors of it from the outset.

The Plaintiff informed Mr. Barry of his interest in The Unit and Mr. Barry thought there would be no difficulty with the Plaintiff coming to work for the Defendant. In 2021, Bally’s Corporation bought the Defendant by way of share purchase through a wholly owned subsidiary. The Plaintiff who had signed a contract of employment in 2017 signed a fresh contract of employment in largely similar terms.

The Defendant commenced an investigation pursuant to its disciplinary procedure.  An investigator was appointed (the Investigator) to investigate the Plaintiff’s role in The Unit.  The Investigator found that The Unit was not in competition with the Plaintiff and that the Plaintiff had not been poaching employees for The Unit from the Defendant. Nevertheless, the Investigator found that the Plaintiff had a case to answer in several respects. The Investigator found that the Plaintiff was in breach of clauses of his contract of employment, one of which required the Plaintiff to comply with the Group’s code of conduct policy.

The Plaintiff was summarily suspended from his employment in March 2024 essentially on the basis that The Unit appeared to Bally to be a competitor of the Defendant, and it was thought that the Plaintiff was using his position as employee of the Defendant to poach staff from the Defendant and to direct business to The Unit. While the Defendant maintained that The Unit was a competitor of the Defendant, the investigator who was appointed to investigate the Plaintiff’s role in The Unit rejected this.

The Plaintiff sought an interlocutory injunction against the Defendant to prevent the termination of his employment and to compel the payment of his salary and entitlements.

The Plaintiff also sought an order directing the Defendant to facilitate the Plaintiff’s resumption of his duties as Head of Business to Business and his return to the workplace.

The Plaintiff challenged the Defendant’s actions on the grounds of breach of his employment contract and improper adherence to disciplinary procedures.

The Court scrutinised the grounds on which the Plaintiff was suspended and ultimately dismissed, focusing on alleged breaches of contractual clauses and the application of non-contractual company policies.

The Court ultimately determined that there was a strong case to be decided and as such the matter should proceed to trial and granted the interlocutory relief sought to prevent the suspension.

The Court in assessing the lawfulness of the suspension found that the Plaintiff had a robust case in relation to the lawfulness of his dismissal largely attributed to the fact that he never received a verbal or written warning in relation to the breach of contract matters and that he had an unblemished record. Specifically, the judgment highlighted inconsistencies in the application of disciplinary policies and the improper reliance on non-contractual codes of conduct to justify summary dismissal.

This judgment emphasises that employers must distinguish clearly between contractual obligations and company policies without contractual effect.

Summary dismissals based on non-contractual policies, absent clear contractual backing, may be deemed unlawful.

Protected Disclosures

The full case can be found here.