Case law update: Amanda Hennigan v An Comisiún Le Rincí Gaelacha [2023] IEHC 87 – High Court rules CLRG's Disciplinary Process should proceed
Locations
In delivering her judgment, Ms Justice Roberts held that the teacher's complaints "however valid, do not demonstrate that at this point in time the disciplinary process has gone irredeemably wrong". Notably, the Court pointed to the fact that while CLRG had introduced new rules specifically for the disciplinary process that were not in place at the time the conduct in question took place, there was no evidence that the new procedures would disadvantage the plaintiff.
The Court did however grant the plaintiff's application to lift a suspension imposed on the plaintiff preventing her from adjudicating further competitions pending the outcome of the disciplinary proceedings. It was held that the plaintiff had a strong case that she had not been afforded fair procedures in relation to the suspension, particularly as the suspension was open-ended and that there had been no finding of gross misconduct against the plaintiff yet.
Background
The plaintiff is an Irish dancing teacher and adjudicator of competitions, who operates a dance school in the UK. Any person intending to teach or adjudicate a CLRG event must be accredited by CLRG and in doing so are governed by:
- CLRG Code of Conduct, dated December 2016
- Rules for Teachers and Adjudicators, dated January 2020; and
- A Discipline Procedures document, dated 20 January 2021
The evidence against the plaintiff consisted of a single screenshot of texts to an adjudicator in February 2019. The texts included comments such as “but would really appreciate a hand with my good u18 please” and “Hi love… hope you are ok and enjoying it a little bit! I’m thinking of you xx. I have Erin tmrw u18 no 288…She was 2nd at NANs and 3rd at British Nats and our Oireachtas Champion as well… appreciate anything you can do… Thank you x”.
In September 2022, an anonymous party uploaded the complaint documentation to the internet, making the plaintiff identifiable. After this, CLRG issued a statement to its worldwide membership announcing the receipt of allegations of "several grievous breaches of our Code of Conduct".
A preliminary investigation was initiated and on 04 October 2022, ACF sent copies of the complaints to a retired Court of Appeal judge, Mr Justice Michael Peart, asking him to produce a report to "establish the facts of the matter and reach a conclusion without undue delay".
On 10 October 2022, the plaintiff was advised that CLRG had received a complaint against her and would commence an investigation, but was not provided with copies of the text messages. The plaintiff was advised to consult the Disciplinary Procedures Policy as ratified by CLRG in 2016 “for further information as to the procedure to be followed and your position relative to these procedures”.
On 11 October 2022, Mr Justice Peart delivered his report. He found that “broadly speaking” the allegations were that a “number” of individuals sought to have their students receive favourable treatment in exchange for favours, concluding that sufficient prima facie evidence had been provided to support a complaint that “if proven at a full hearing to be true, these allegations are of the utmost seriousness”.
The next day, CLRG wrote to the plaintiff making it clear that she was suspended from officiating or acting in an official capacity at any CLRG event until the disciplinary process had concluded and she was directed to Clause 3.2 of the Disciplinary Procedures, which sets out that a disciplinary matter shall be carried out without unreasonable delay and following a finding of gross misconduct a person may be prohibited from officiating at CLRG events. Further, Clause 4 provides that "Prior to any disciplinary action being taken (punitive or non-punitive), the individual shall be called to a properly convened disciplinary hearing and be given the opportunity to explain the circumstances”.
On 25 October 2022, CLRG advised the plaintiff that there was a prima facie case, that a disciplinary panel would be convened comprising of individuals from outside the organisation and emphasised that while no conclusion on the allegations had been made the plaintiff stood suspended and “will stand suspended until the inquiry is concluded”. The plaintiff stated that this was the first time she received any indication that there would be a unilateral departure from CLRG’s Disciplinary Procedures document, and although the plaintiff was originally told that the hearing would take place in January 2023, no date was set.
The plaintiff proceeded to issue proceedings in December 2022, seeking interlocutory injunctions:
- Restraining her suspension from adjudicating; and
- Seeking to halt the disciplinary process.
In respect of both applications, it was agreed that the plaintiff was required to establish a strong case likely to succeed at trial, with the Court noting:
- The plaintiff was entitled to fair procedures in the disciplinary process[1];
- Natural justice and fair procedures are required where a suspension amounts to disciplinary action[2]; and
- The passage of time may invalidate a suspension, particularly where that suspension involves potential reputational and financial damage[3]
[1] Glover v BLN Ltd [1973] IR 388
[2] Deegan v Minister for Finance [1998] IEHC 68
[3] Flynn v An Post [1987] IR 68; O’Sullivan v HSE [2022] IECA 74
2. Restraining the Disciplinary Hearing
The Court refused to restrain CLRG's disciplinary process, stating that intervention in an ongoing disciplinary process should only occur in clear cases where an unfairness had arisen that could not be cured[1]. The Court held that while some of the plaintiff's arguments were valid, such as delay in conducting the hearing and the introduction of new disciplinary procedures during the disciplinary process, they were insufficient to halt the process. In grounding its decision, the Court was influenced by the following points:
- Suspension
- There was no clear evidence that any person (including Mr Justice Peart) had made a finding of gross misconduct against the plaintiff that would trigger the suspension provisions under Clause 3.2.2. Mr Justice Peart's report had simply recommended an investigation into the matter and was preliminary in nature;
- The complaint had been considered "not as a standalone complaint but rather, in the eye of a media storm, in tandem with multiple other complaints of a different and more explicit character", creating the potential for the complaint against the plaintiff being ascribed a meaning that it might not otherwise bear if viewed in isolation;
- The plaintiff was suspended within two days of being informed of the complaint, the clause used to suspend her was not in place at the time of the text exchange, and no opportunity had been afforded to her to provide an explanation for the texts;
- The plaintiff would not be adequately compensated by damages, in circumstances where there "continues to be ongoing prejudice and damage to the plaintiff's health, reputation and well-being" by virtue of the suspension.
2. Restraining the Disciplinary Hearing
The Court refused to restrain CLRG's disciplinary process, stating that intervention in an ongoing disciplinary process should only occur in clear cases where an unfairness had arisen that could not be cured[1]. The Court held that while some of the plaintiff's arguments were valid, such as delay in conducting the hearing and the introduction of new disciplinary procedures during the disciplinary process, they were insufficient to halt the process. In grounding its decision, the Court was influenced by the following points:
[1] Becker v St Dominic’s Secondary School [2006] IEHC 130; Rowland v An Post [2017] IESC 20
During the proceedings, CLRG submitted to the Court that there was no clear indication as to when the hearing would take place given the difficulty in recruiting “independent people with suitable experience and availability” to participate in the disciplinary panel.
Justice Roberts held that there is “an imperative on CLRG to advance the disciplinary process with a degree of haste from this point onwards” and its failure to do so “may give rise to real prejudice at a future point” which the plaintiff may in future be entitled to complain about.
Conclusion
While CLRG is a private organisation and its relationship with its members is considered, in their view, to be manifestly private and wholly based on contract, in making her decision Ms Justice Roberts relied on case law regarding natural justice and fairness in disciplinary procedures arising in the context of employment law and/or judicial review. Her decision will be of relevance for public bodies applying and enforcing their own professional disciplinary procedures and should be carefully considered.
The judgment demonstrates the Courts will be cautious to interfere with a disciplinary process unless specific prejudice can be identified arising from any procedural deficits. However, the judgment also highlights the overriding obligation on regulatory/governing bodies to afford due process to persons subject to such processes, and to ensure that any deviation from disciplinary procedures are clearly communicated and grounded in reason. In addition, it reiterates the requirement to progress disciplinary processes as expeditiously as possible.
The Court's granting of the injunction halting the plaintiff's suspension could potentially have implications for another 43 individuals who have been suspended by CLRG as they await disciplinary hearings.
The judgment is available here.
- The plaintiff did not deny that the text exchange had taken place;
- Decision makers have a significant margin of appreciation in a disciplinary matter;
- While it was unwise for CLRG to issue public statements during the course of the investigation process, the plaintiff had failed to establish a strong case that there had been pre-determination of her case based on those statements;
- There was no evidence to suggest that the introduction of new disciplinary procedures had resulted in a disadvantage to the plaintiff, and she was not precluded from complaining about fair procedures or to challenge decisions as the matter progressed.
During the proceedings, CLRG submitted to the Court that there was no clear indication as to when the hearing would take place given the difficulty in recruiting “independent people with suitable experience and availability” to participate in the disciplinary panel.
Justice Roberts held that there is “an imperative on CLRG to advance the disciplinary process with a degree of haste from this point onwards” and its failure to do so “may give rise to real prejudice at a future point” which the plaintiff may in future be entitled to complain about.
Conclusion
While CLRG is a private organisation and its relationship with its members is considered, in their view, to be manifestly private and wholly based on contract, in making her decision Ms Justice Roberts relied on case law regarding natural justice and fairness in disciplinary procedures arising in the context of employment law and/or judicial review. Her decision will be of relevance for public bodies applying and enforcing their own professional disciplinary procedures and should be carefully considered.
The judgment demonstrates the Courts will be cautious to interfere with a disciplinary process unless specific prejudice can be identified arising from any procedural deficits. However, the judgment also highlights the overriding obligation on regulatory/governing bodies to afford due process to persons subject to such processes, and to ensure that any deviation from disciplinary procedures are clearly communicated and grounded in reason. In addition, it reiterates the requirement to progress disciplinary processes as expeditiously as possible.
The Court's granting of the injunction halting the plaintiff's suspension could potentially have implications for another 43 individuals who have been suspended by CLRG as they await disciplinary hearings.
The judgment is available here.