Halpin -v- National Museum of Ireland [2019] IECA 57

Keywords: Suspension; Injunctive Relief; Access to Medical Records

This case involved the attempt by the employer to suspend a senior employee after unfavourable reports about his alleged behaviour appeared in a national newspaper, albeit the articles did not identify the employee by name. The employer justified the suspension of the employee on grounds that he was under stress, the situation would be made worse by the press reports and went further in demanding that the employee should undergo psychiatric assessment and allow the medical assessor to access his medical records from his GP. The employee refused and sought injunctive relief, which include, inter alia, a declaration that his suspension is without lawful authority, a declaration that the Museum is not entitled to require him to undergo assessment by a clinical psychologist or consultant psychiatrist and that it is not entitled to require him to permit access to his own medical advisers for such purpose.

In the judgement of the Court of Appeal, delivered by Ms. Justice Irvine, there is no justification for an employer to see medical records after they have made their decision in the absence of said records and the High Court judge was correct on this aspect of the original hearing:

"In light of the manner in which the appeal was pursued, there is little need to engage with the reasoning of the High Court judge which led her to conclude that the respondent’s medical records were neither necessary nor relevant to the proper and just determination of the aforementioned issues. She was clearly correct in her conclusion that, in circumstances where the appellant was not aware of the content of the respondent’s medical records either at the time when he was suspended or at the time he was notified of its requirement that he submit to psychiatric and psychological assessment, those records could never be relevant to the issue as to whether or not the appellant’s actions were justified or lawful. Either there was or was not evidence or other good reason to justify the decisions taken by the Board of the Museum." [Para 41]

"I am satisfied that the High Court judge correctly categorised the discovery, insofar as it was sought for the purposes earlier described, as a classic fishing expedition which might result in the improper use of the respondent’s medical records for the purposes of providing “ex post facto justification for its actions”... Knowledge of what was in the respondent’s medical records played no part in the appellant’s assessment or decision and accordingly could not be relevant to whether the decision made was justified and lawful in the circumstances that pertained." [Para 42]

The High Court judge went on to order discovery on a limited basis i.e. the High Court judge directed the plaintiff to swear an affidavit making discovery of the “category (vi)” documentation. Somewhat unusually, she further required that this affidavit and the documents produced thereunder “be sealed and placed on the Court file to be available to the trial court in respect solely of the issue of remedy and depending on the outcome of the trial”. This part was criticised by the Court of Appeal:

"The order, insofar as it directed the respondent to make discovery of his medical records and to place his affidavit and copies of the documentation scheduled thereto in a sealed envelope to be available to the High Court judge for potential consideration in relation to the remedy that he might be afforded, is not one which is envisaged by the Rules of the Superior Courts. That is not to state that the court does not have an inherent jurisdiction to order that discovery be made otherwise than strictly in accordance with the Rules of the Superior Courts should it be established that only an order in such terms could meet the justice of the case. However, for the reasons earlier explained, the justice of this case did not warrant the making of an order in such exceptional terms." [Para 63]

The Court of Appeal found that medical assessment cannot be ruled out indefinitely:

"The declarations and injunctions claimed were never intended to tie the hands of the appellant in relation to future events or circumstances as might arise concerning the respondent’s conduct. It is perhaps not unsurprising that counsel for the respondent accepts that no court could be asked to make an order that would permanently deny an employer the right to require an employee to undergo psychological and/or psychiatric assessment. Such an order could have the effect of precluding that employer from discharging their common law and/or statutory duties to not only that particular employee but also to other employees and possibly members of the public." [Para 46]

The Court of Appeal sought to put some perspective on this case:

"It is important not to lose sight of the fact that the respondent was not dismissed from his position but merely suspended. It would seem that the discretion of the court, subsequent to a finding that his suspension was unlawful, to refuse to reverse the effects of that suspension must, if it exists at all, be very narrow indeed. Furthermore, carefully scrutinised, no such reversal is sought by way of declaration or injunction. What is claimed as ancillary to the declaration that the suspension was without lawful authority is “a declaration that the plaintiff is an employee of the defendant in good standing” a plea consistent with the alleged continuance of his contract of employment." [Para 67]

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/7eb4103da38da89c802583b6003a06fa?OpenDocument