The High Court recently rejected an application by an An Post worker seeking to prevent his employer from proceeding with a disciplinary process pending the outcome of criminal proceedings against him.

Mr. Rogers was employed as a branch manager by An Post.  In 2012, it was alleged that Mr. Rogers had tampered with a urine sample of another An Post employee which had been posted by An Garda Síochana to the Medical Bureau of Road Safety for analysis. As a result, Mr. Rogers was charged with intent to pervert the course of justice.  On the same day, he was suspended on full pay by An Post in order to investigate the matter. As is quite often the case when employees are involved in criminal proceedings, Mr. Rogers asked to have the disciplinary proceedings adjourned pending the criminal trial on the basis that he did not wish to risk incriminating himself. After extensive exchange of correspondence between the parties, An Post acceded to his request.

Subsequently when the case came before the Circuit Criminal Court, there was a hung jury and so the case was rescheduled for a further hearing. As a result, An Post advised Mr Rogers of its intention to proceed with its disciplinary process and, importantly, An Post agreed to provide an undertaking that it would not require Mr. Rogers to incriminate himself.

Mr. Rogers objected to the resumption of the disciplinary process and sought an injunction from the High Court to restrain An Post from taking any further steps in the process pending the outcome of the rescheduled criminal proceedings. Mr. Rogers alleged that he satisfied the test for an injunction. In particular, he said that damages would not be an adequate remedy as he alleged that he would suffer irreparable prejudice should he participate in the disciplinary process by potentially losing his privilege against self incrimination.

The High Court refused to grant the injunction and, in reaching this decision, the Judge emphasised the Court’s reluctance to interfere in a disciplinary process unless it is “manifestly unfair”. The purpose of an injunction is to preserve the status quo until the full trial.  Judge Keane held that if the application was granted, this would determine the matter as the criminal trial would most likely bring an end to the disciplinary process.  

This case will be welcomed by employers as it confirms that employers may not be required to adjourn disciplinary proceedings when there are criminal proceedings in being. However, it should be remembered that in all instances fair procedures must be followed throughout a disciplinary process and an employer should note that it is not its role to seek to determine issues that are matters for criminal investigation when conducting a disciplinary process.

Contributed by Louise Moore.