The involvement of An Garda Síochána before or at the time of an employer’s disciplinary investigation can cause particular difficulties for employers for a number of reasons. Firstly, if the employee is charged with a criminal offence, he or she may refuse to answer questions during the disciplinary investigation for fear of self-incrimination or the employee may be advised by their legal representation not to participate in the process at all. As a result, the involvement of the Gardaí may unavoidably result in the postponement or suspension of any disciplinary process. Secondly, if the employer is acquitted of a criminal offence because of a technicality or if the case does not meet the criminal standard of proof of “beyond all reasonable doubt”, this will complicate the employer’s task. While the employer can proceed with the disciplinary action in these circumstances, the employer will need to be careful that the allegations are drafted in such a way that they relate to the employment relationship rather than the criminal charge, for example, an allegation of bringing the employer into disrepute or a breach of trust and confidence rather than an allegation of, for example, theft.
While the employer could suspend the employee pending the outcome of the criminal proceedings, as the employee must be paid during the period of suspension, any such suspension would be a costly exercise especially given the pace at which some criminal cases come before the Courts in Ireland.
Unless it can be avoided, it is often advisable to conclude the disciplinary process before getting the Garda Síochána involved. However, it is not possible to adopt a “one size fits all” approach and the manner in which an employer should proceed will ultimately depend on the circumstances of the case, the seriousness of the incident in question and whether the employer has an obligation to report a possible offence under section 19 of the Criminal Justice Act 2011.
This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie