This matter came before the Court of Appeal by way of an appeal brought on behalf of National University of Ireland Galway (‘the Respondent’) against a decision of the High Court (Baker J) to accede to Professor Nasheuer’s (‘the Applicant’) application for an interlocutory injunction to restrain an investigation by an external consultant, appointed by the Respondent, into allegations of bullying and harassment against him. The High Court found that Applicant had made out a serious case to be tried of objective bias on the part of the external investigator. Irvine J gave judgment on behalf of the Court of Appeal on 21 March 2018.

Factual Background

In April 2014 a member of the Respondent’s staff (‘the Complainant’) submitted formal complaints of bullying and harassment against nine named colleagues, including the Respondent. There was some disagreement between the Complainant and the Respondent as to whether the complaints fell to be investigated under the Respondent’s Internal Grievance Procedure or under its Staff Anti-Bullying Policy. The Complainant’s stated preference was to have her complaints processed through the University’s Grievance Procedure by an independent external investigator. This dispute was referred to a Rights Commissioner under section 13 of the Industrial Relations Act 1969 from whose Recommendation the Respondent appealed to the Labour Court. The Labour Court issued its Recommendation (LCR21321) on 18 October 2016. It recommended that an external investigator be appointed to investigate the totality of the complaints. The parties agreed that the investigator would be appointed by the Labour Court.

It is worthwhile quoting briefly from LCR21321 at this point as the detail of the Labour Court’s Recommendation subsequently proved to be pivotal to the Court of Appeal’s decision. The Labour Court recommended as follows:

“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 Procedures and its Staff Anti-Bullying 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.”

Ms Janet Hughes was appointed to conduct the investigation pursuant to the Labour Court’s Recommendation. She is well-known in industrial relations circles having been a senior trade union official and subsequently a Rights Commissioner for many years. She currently practices as a consultant in the area of industrial and employee relations. It appears that Ms Hughes proceeded to consult with the parties (i.e. the Complainant and the Respondent) before finalising the terms of reference for the investigation, as had been recommended by the Labour Court. She then wrote to the Applicant enclosing the finalised terms of reference and outlining the methodology she proposed to employ during the course of the investigation. She invited the Applicant to submit any comments or proposals he had concerning the suggested methodology within fourteen days of her letter. The Applicant replied in writing through his solicitors. This reply focused on the Applicant’s concerns regarding the delay on the Respondent’s part in informing him about the complaints against him. Although a number of those complaints dated back to 2004, the Complainant’s formal complaint was submitted in April 2014 but had not been communicated to the Applicant until 1 December 2016 (i.e. almost two months after the Labour Court’s Recommendation had issued).

The Applicant’s solicitors wrote again to Ms Hughes in June 2017 to clarify that the Applicant did not consent to the terms of reference drawn up by her and to seek that they be amended to extend the investigator’s jurisdiction to address the delays in the process to date. Ms Hughes replied to the effect that she had determined the terms of reference pursuant to the Labour Court’s Recommendation which did not stipulate that they had to be agreed with the Complainant, the Respondent, the Applicant or any of his colleagues against whom complaints had been made. She also expressed her view that the delay in the period 2014 to 2016 prior to the Labour Court’s Recommendation had no place in the investigative procedure.

The Applicant attend a meeting – accompanied by counsel and solicitor – with Ms Hughes on 21 July 2017. In the course of that meeting, counsel for the Applicant asked Ms Hughes to confirm whether she had previously acted for the Complainant in her capacity as a trade union official in proceedings before the Labour Court. Ms Hughes confirmed that she had done so in 1996 due to the illness of a colleague in the trade union who was due to represent the Complainant in a case against the Respondent. Ms Hughes clarified that she had met the Complainant on two occasions in relation to that one matter in 1996 but had had no subsequent dealings with the Complainant. Furthermore, Ms Hughes advised that following her appointment as investigator by the Labour Court she had in fact raised the issue of her prior involvement with the Complainant both with the Complainant and with the Respondent each of whom confirmed they had no objection to her acting as investigator. On that basis, she refused to accede to the Applicant’s request that she recuse herself from the investigation. Counsel stated her client objected to Ms Hughes conducting the investigation on grounds that her prior involvement with the Complainant gave rise to a perception of bias in circumstances where the Applicant had not been consulted or given an opportunity to make his views known in relation to her appointment. Counsel did not address Ms Hughes’s invitation to the Applicant to make observations on her proposed methodology for the investigation.

High Court Decision

The Applicant initiated proceedings against the Respondent in the High Court on 28 July 2017 seeking an injunction prohibiting NUIG from continuing with the investigation into the complaints made against him. An oral hearing took place on the 13 September 2017, following which Baker J. delivered judgment on 22 September 2017 granting the relief sought.

The Applicant made two principal submissions before the High Court in support of his application to have the proposed investigation injuncted on grounds of objective bias: Ms Hughes’s prior involvement with the Complainant; and Ms Hughes’s refusal to permit him to have an input into the terms of reference for the investigation. Baker J determined that the appropriate test to be applied by the Court was whether the Applicant had established “a fair question to be tried and whether the interests of justice required that such relief be granted”. The learned Judge determined that the test had not been satisfied in relation to the first issue i.e. Ms Hughes’s prior involvement with the Complainant in 1996. This was too remote in time, was wholly professional and had come about solely due to Ms Hughes filling in for a colleague who was ill at the time. However, Baker J took the opposite view in relation to the second element of the Applicant’s submission and determined that Ms Hughes’s refusal to engage with the Applicant before finalising the terms of reference for the investigation had “created circumstances which looked at as a whole, would give rise to an apprehension of bias in a reasonable person”. On this basis, the learned Judge granted a stay on the continuation of the investigation pending a full trial. The Respondent appealed to the Court of Appeal from the decision of Baker J.

Court of Appeal Decision

In considering whether or not the Applicant had established a serious issue to be tried, the Court of Appeal took as its starting point the test for objective bias as articulated by Denham CJ in Goode Concrete v CRH plc & Ors [2015] IESC 70, at paragraph 54:

“54. The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.”

When it came to applying the above test to the first issue considered by the High Court (Ms Hughes’s prior professional involvement with the Complainant), Irvine J noted that the judgments of Denham and McGuiness JJ in Bula Limited v Tara Mines Limited (No. 6) [2000] 4 IR 412 were instructive. Irvine J observed that Ms Hughes’s prior relationship with the Complainant was analogous to the relationship that exists between a barrister and client for whom the barrister acts on one occasion: barristers are independent and “do not become espoused to a litigant’s ambitions”; they could equally have been briefed by the opposing side in proceedings; a prior relationship – unless it was a long, varied or recent one – generally does not disqualify a former barrister on becoming a judge from sitting in proceedings to which the former client is a party. Having regard to the decision in Bula, Irvine J concluded that a reasonable and fair-minded observer would take the view that the time that had elapsed between the present investigation and Ms Hughes’s previous involvement with the Complainant was such as to greatly diminish any risk of Ms Hughes being influenced by the events of 1996.

Turning to the second issue which the Applicant had relied on before the High Court (i.e. Ms Hughes’s refusal to consult the Applicant in relation to the terms of reference for the investigation), Irvine J focused, in particular, on the following characteristic of the reasonable person as per Denham CJ’s test in Goode Concrete i.e. that that person be possessed “of all the relevant facts”. She then proceeded to enumerate the relevant facts in the instant case:

• Ms. Hughes was appointed to carry out the investigation by the Labour Court;
• The Labour Court’s Recommendation required Ms Hughes to consult with the Complainant and the Respondent only (and not the Applicant) concerning the terms of reference and the scope of the investigation;
• Under the procedure advised by the Labour Court, the Investigator was to be the sole and final arbiter of the terms of reference. She did not require the agreement of the Complainant, the Respondent or the Applicant to the terms of reference;
• Ms Hughes - in accordance with the Labour Court’s Recommendation - had consulted the Complainant and the Respondent after which she alone had determined the terms of reference;
• The Labour Court - on being advised of Ms Hughes’s past professional involvement with the Complainant and having considered the matter - was satisfied that she was, nevertheless, an appropriate person to carry out the investigation;
• The Applicant was afforded the opportunity to comment on the methodology for the investigation;
• The Labour Court expressly required the Investigator to adopt procedures that were fair and which complied with the rights of the Complainant, the Respondent and the other parties against whom complaints had been made, to natural justice;
• Ms Hughes had confirmed in writing to the Applicant that she would, in the course of the investigation, consider any argument advanced by the Applicant based upon prejudicial delay;
• The procedure advised by the Labour Court, which did not require consultation with the Applicant concerning the terms of reference, was in accordance with that provided for in the University’s own Staff Anti –Bullying Policy.

Having regard to the foregoing “relevant facts”, Irvine J observed, at paragraph 70 of her judgment:

“ … I cannot see how the reasonable and fair-minded observer could reasonably apprehend bias on the part of Ms Hughes because she refused to afford Professor Nasheuer the opportunity to make submissions concerning the terms of reference and, in particular, a submission confined to the antiquity of the complaints. The informed observer would understand that he had no entitlement to be treated in the same manner as the complainant regarding the terms of reference and that in such circumstances no bias could be imputed to the decision of Ms Hughes not to consult him on the matter. This is particularly so in circumstances where Ms Hughes had both orally and in writing spelt

out precisely why she had refused his request. Further, the independent observer in this case would have been in a position to verify as correct all of what Ms Hughes had said in support of her decision given that he/she is to be considered to have knowledge of all of the relevant facts which would include the information contained in the documents and correspondence forwarded to Professor Nasheuer and also what was said by Ms Hughes at the meeting of the 21st July 2017.”

Notwithstanding its findings that neither of the factors submitted by the Applicant gave rise in isolation to a perception of bias, the Court went on to consider whether those factors taken cumulatively could be considered to raise a serious issue of objective bias in the within proceedings. The Court – while it accepted in principle that there may well be cases in which the courts have relied on an accumulation of factors to conclude that the reasonable and fair-minded observer would apprehend bias - opined that the Applicant, in seeking to advance this argument before it (which it did not accept informed the reasoning of the High Court), was seeking to accumulate unrelated issues, separated by as much as twenty years. On this issue, Irvine J stated at paragraph 89:

“However, even if … the approach urged by counsel on behalf of Professor Nasheuer is regarded as permissible, I am satisfied that the reasonable and fair-minded observer with full knowledge of both relevant factors, i.e. (i) of all of the circumstances concerning the prior professional relationship between the complainant and Ms Hughes and (ii) her dealings with the complainant and the [Professor Nasheuer] concerning the terms of reference, could not reasonably apprehend bias such that the court could conclude that Professor Nasheuer had made out a serious issue to be tried concerning objective bias.”

On the basis of the foregoing analysis of the issues, the Court of Appeal determined that the High Court had misapplied the test for perceived bias by substituting the Applicant’s view of the relevant facts for that of the reasonable and fair-minded person who is in possession of all the facts. The Respondent’s appeal was, therefore, allowed.

Conclusion

The judgment of the Court of Appeal in this matter is on all fours with the approach to the issue of objective or perceived bias taken by the Supreme Court in Goode Concrete v CRH plc & Ors [2015] IESC 70 and in Bula Limited v Tara Mines Limited (No. 6) [2000] 4 IR 412. From a practical perspective, the judgment appears to be authority for the proposition that a respondent in an internal workplace investigation does not have an inherent right, grounded in the principles of natural justice, to be consulted in relation to the terms of reference of any proposed investigation into complaints against him/her. Any argument that such a right arises in any particular case will be defeated by an express provision in an employer’s applicable policy clearly stating who is to determine the terms of reference for an investigation to be conducted pursuant to that policy.

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