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'Beware garda reporting of alleged workplace crime'

When workplace misconduct crosses over into a potentially criminal matter, employers should deal with it through disciplinary procedures first before reporting anything to the gardaí, attendees at the Legal Island annual review of employment law 2024 were advised.

This is the case except when there is an immediate risk to the safety of the organisation and its employees.

Timing is key

“Your organisational policies might say that you will report criminal matters at work to the gardaí for them to deal with, but your timing on this is key,” said Michelle Halloran of MH Human Resource Management Solutions, a speaker at the event hosted by Legal Island (12 November).

“If you report an issue, such as theft, fraud, violence or assault at work, to the gardaí before you commence a disciplinary investigation, this is putting the cart before the horse, in my opinion.

“Any good employment lawyer will advise their client not to co-operate, invoking their right to silence in what has been reported to the gardaí as a criminal matter.”

Electricity Supply Board v Kieran Sharkey

This was the difficulty in the landmark case in the High Court this year of Electricity Supply Board v Kieran Sharkey [2024], which Halloran explored in her presentation.

Sharkey was under criminal investigation for bribery and corruption, following allegations from two developers in 2022 that ESB employees were demanding cash payments to expedite work for them.

Months after notifying gardaí of the allegations, ESB wrote to the defendant asking him whether he had substantively engaged in the behaviour that was the subject of the garda investigation.

The plaintiff said that the defendant was “directed” to comply with this “formal instruction in connection with [his] employment”.

“ESB wanted the judge to rule that it could summarily dismiss Sharkey for refusing to follow a reasonable request in line with his contractual obligations.

"In actions taken under the Unfair Dismissals Act 1977, such as workplace investigations or disciplinary hearings, employees cannot automatically rely on a legal right to refuse to speak," Halloran explained.

“The Sharkey case was interesting in relation to the employee invoking the right to silence. There haven’t been many of these over the years. Justice Rory Mulcahy ruled that the defendant was entitled to refuse to comply with ESB’s direction to answer questions until the concurrent criminal investigation was at an end,” she said.

Rise in workplace investigations

The Legal Island annual review of employment law highlighted that there had been an increase in the number of workplace investigations and their complexity in the past 12 months – including those relating to matters that could be considered criminal.

“If you jump in and quickly report a possible criminal offence to the gardaí, you might be stuck with an employee you no longer trust before you can officially dismiss them,” said Halloran.

“The Sharkey ruling confirmed that an employee can invoke their right to silence while criminal proceedings are hanging over them. It can take quite some time for a criminal investigation to be concluded and for the Director of Public Prosecutions to decide to take a case.”

16% of employees are addicted

In her presentation, Caroline Reidy, managing director of The HR Suite, discussed the growing problem of substance abuse in the workplace.

According to the latest Laya Healthcare Workplace Wellbeing Index, launched on 12 November, 16% of employees are addicted to or have an unhealthy relationship with Class A or illicit drugs.

Barry Halpin v Iarnrod Eireann/Irish Rail

Among the issues faced by employers is how to deal with possession of Class A drugs, which is a criminal offence.

Reidy pointed to the recent case of Barry Halpin v Iarnrod Eireann/Irish Rail [2024] to illustrate why employers needed to tread carefully with this.

Barry Halpin was found to be in possession of illegal drugs when stopped by the gardaí while driving a company vehicle.

Though prosecuted, he received a minimal penalty. He had passed all employer drug tests, was not a user, but claimed that he was coerced by others due to a gambling addiction. 

Natural justice

The company terminated his employment without going through any rules of natural justice or investigation.

“The Workplace Relations Commission deemed that the seriousness of the offence didn’t warrant a summary dismissal and awarded Halpin €40,000, or 44 weeks’ pay, plus €7,500 notice pay. This could have been avoided if there had been a fair workplace-investigation process,” said Reidy.

“Workplace investigations are the crux of a lot of case-law decisions in this area. If you don’t have a professional, fair investigation, it’s like having a three-legged stool with one leg – the employee might be guilty as charged, but this makes no difference if you haven’t met your legal obligations as an employer.”