Background:

The Defendant has been employed as a network technician with the Plaintiff since 2 February 2017. Property developers who depended on the Plaintiff’s works approached the Plaintiff and alleged that employees of the Plaintiff were demanding cash payments for expediting the works to be completed. The Plaintiff reported these activities to An Garda Siochána, who told the Plaintiff to not take any action that would put the relevant employees, including the Defendant, on notice of their investigation. The Defendant’s home was searched by the Gardaí and afterward the Plaintiff advised the Defendant that they had initiated the investigation in question. Months later, the Plaintiff wrote to the Defendant and asked him whether he had substantively engaged in the behaviour which was the subject of the Garda investigation initiated by the Plaintiff. The Plaintiff said the Defendant was “directed” to comply with this “formal instruction in connection with [his] employment.”

The Defendant, through his solicitor, refused to answer the questions raised the Plaintiff, invoking his right to silence. The Plaintiff then issued proceedings to the High Court, seeking a declaration that the Defendant has repudiated his contract of employment.

Outcome:

The High Court (Mulcahy J.) found that the Defendant was entitled to depend on his constitutional right to silence and refuse to answer questions from his employer which pertained to an ongoing criminal investigation. However, once the Defendant is no longer subject to the criminal investigation in question, he must either answer the questions asked or face the consequences (including potential dismissal) for his failure to do so.

Practical Guidance for Employers:

Constitutional rights continue to be applied and relevant in the private employment context, particularly as part of investigations and disciplinary procedures, and employers should take any purported invocation of those rights by an employee seriously.

The full case is here:   https://www.courts.ie/acc/alfresco/4b8a8a62-cb1c-424d-903e-1f593b7fec58/2024_IEHC_65.pdf/pdf#view=fitH