Saturday, June 11, 2016

Ireland - the Distinction Between Information Gathering and Fact Finding

By Deirdre Lynch, Byrnewallace Solicitors, Dublin

In the context of investigations of potential disciplinary issues, it is ever important for employers to bear in mind the distinction between pure information gathering, on the one hand, and fact finding, on the other. In the former case, there is no right to fair procedures; in the latter, there is. The following recent case illustrates the potentially serious consequences for an employer of not affording an employee her right to fair procedures where findings of fact were made in respect of that employee’s behaviour.

In Mary Joyce v Board of Management of Coláiste Iognáid, the plaintiff was the principal of the defendant school. The Board of Management requested the Chairperson to prepare a report regarding certain “major” issues at the school. This report contained a number of negative references to the plaintiff and was presented to the Board of Management. The plaintiff was requested not to attend the Board meeting at which the report was presented. The minutes of the Board meeting indicated that the report was discussed in detail. The Board resolved to request the Chairperson to prepare a further report outlining the issues of concern in relation to the plaintiff. The school's disciplinary procedure was then distributed to attendees and the Chairperson indicated that he would be "inviting the Board in time to consider if a report might be presented to the principal in the context of the [disciplinary] procedure".

A further report was prepared by the Chairperson. This was presented at a meeting of the Board of Management on 14 May 2015. The Chairperson reminded the Board that the report set out a series of matters of concern relating to the plaintiff which, it was indicated, could not be discussed in detail as they needed to be put to the plaintiff. No decision was made by the Board regarding how to proceed. A further meeting was held in June during which the allegations were discussed. No attempts were made by the Chairperson to interview the plaintiff. The Chairperson finalised his report in July 2015 and sent it to the plaintiff. The Board concluded that disciplinary proceedings, regarding mismanagement issues highlighted in the report, should be initiated.

The plaintiff sought an injunction to restrain further disciplinary proceedings pending a full trial of the action. The plaintiff submitted that the report was more than a mere evidence gathering exercise and, that it made findings and drew conclusions which were deeply prejudicial to her. In view of these findings, the plaintiff asserted that she should have been afforded an opportunity, in accordance with the principles of natural justice and fair procedures, to make representations. This did not happen.

The defendant submitted should that the report was merely a pre-investigation and therefore that the principles of natural justice should not apply. It alleged that no findings had been made against the plaintiff.

However, the High Court found in favour of the plaintiff on the following bases;

1. That the Chairperson and the Board did not distribute copies of their initial report to the plaintiff and the Board proceeded to discuss the matter at two further meetings prior to involving the plaintiff, to her likely detriment. This contravened the procedures set out in a relevant circular.

2. That the report which issued in July contained not just statements of facts but also findings and conclusions which had been made without giving the plaintiff an opportunity to respond, thereby depriving her of natural justice and fair procedures.

Given the adverse conclusions drawn in the report, the High Court considered that there was a strong likelihood of the plaintiff succeeding at trial and therefore granted an injunction restraining any disciplinary action against her until a plenary trial.

What lessons may be learned from this case?

(a) It is essential to be cognisant of the important distinction between fact finding and pure information gathering.
(b) An employee is entitled to fair procedures where findings of fact are made/conclusions drawn. A failure to afford such rights can have costly consequences for employers in Ireland.