In Amanda Hennigan v An Comisiún Le Rincí Gaelacha [2023] IEHC 87, the Plaintiff applied to the High Court for an interlocutory injunction restraining the Respondent from pursuing disciplinary proceedings against her.
The High Court refused her injunction application, but granted her application to lift the suspension imposed on her pending the outcome of the disciplinary proceedings. Although in this case the Plaintiff was not an employee of the Defendant, the decision is nevertheless of relevance to injunction applications in an employment context. In particular, it highlights the need for employers to exercise caution in suspending employees in the context of a disciplinary process, which is the focus of this article.
Facts: The Plaintiff is an Irish dancing teacher and adjudicator of Irish dancing competitions. She owns and runs a dance school in England. The Defendant, An Comisiún Le Rincí Gaelacha (“CLRG”), is the primary accreditation body for Irish dancing and runs and regulates Irish dancing competitions both nationally and internationally.
The Plaintiff is registered with the Defendant as a teacher and adjudicator and her contractual relationship with the Defendant is governed by the following:
- CLRG Code of Conduct implemented on 11th December 2016
- Rules for Teachers and Adjudicators dated 1st January 2020
- A Discipline Procedures document dated 20th January 2021.
In July 2022, the Defendant’s Investigation Committee, An Coiste Faire, received a complaint of alleged competition fixing involving a number of named individuals (including the Plaintiff) and an adjudicator for the 2019 All Ireland Championships. Screenshots of text messages were provided to the Defendant as part of the complaint. The only evidence against the Plaintiff was a single screenshot of text messages between her and an adjudicator in February 2019. The text exchange was not exhibited in full, and the Court noted that the context of the exchange was therefore unclear.
The texts included the following exchanges:
- “but would really appreciated a hand with my good u18 please. XX thank you (and a kiss emoji)” to which the adjudicator replied “absolutely, not a problem” and the Plaintiff replied “Xxxx Thank You”.
- “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”. The adjudicator responded with a thumbs up emoji and the Plaintiff replied to this with a kiss emoji.
- “Thank you so m(uch) xxxx delighted”.
Certain statements were issued by the Defendant following its receipt of the complaint, including online statements issued before the Plaintiff had been made aware that there was a complaint against her. The Plaintiff argued, amongst other things, that these statements irredeemably compromised the fairness of the disciplinary process particularly in circumstances where there was significantly less evidence against her than against other individuals.
Retired judge of the Court of Appeal, Mr Justice Michael Peart, was appointed to carry out a preliminary investigation and An Coiste Faire provided him with copies of the complaints. Mr Justice Peart prepared a report which was provided to the Defendant on 11th October 2022. He recommended that the Disciplinary Committee fully investigate the matter.
On 12th October 2022, the Plaintiff was informed in writing that “following an investigation into a complaint made against you, the investigators report recommends that a Discipline Committee [Disciplinary Hearing] is convened to deal with a case of Gross Misconduct.” The Plaintiff was suspended from officiating at or acting in an official capacity at any CLRG registered competition or event pending conclusion of the disciplinary procedure.
By letter of 25th October 2022, the Plaintiff was informed that the Defendant had decided that the disciplinary panel would be made up of individuals from outside the organisation. The Plaintiff was told that no conclusion had been reached in relation to the allegations, but that she would “stand suspended until the inquiry is concluded”.
Decision: The Court considered the relevant documents (the Defendant’s Code of Conduct, Rules for Teachers and Adjudicators, and Discipline Procedures) in detail, along with the report of Mr Justice Peart. The Court also referred to established case law regarding suspensions, including those in the employment context, and noted the importance of minimising periods of suspension imposed pending the holding of a disciplinary hearing.
The Court noted that the Plaintiff was in a contractual relationship with the Defendant, which was governed by the rules of the Defendant, but was not an employee of the Defendant. The Defendant did not oppose the Plaintiff’s entitlement to fair procedures and natural justice notwithstanding the fact that she was not an employee and the Court agreed:
“I fully accept that, even without a formal employment relationship, the plaintiff in this case is entitled to natural justice and fair procedures.”
Strong case likely to succeed at trial
The Court was satisfied that the Plaintiff had established a strong case that she was not afforded natural justice in relation to her suspension for the following reasons:
- There was no clear evidence that anyone had made a prima facie finding of gross misconduct against the Plaintiff. The Court found that it was a requirement under the Defendant’s Discipline Procedure that an investigation into “gross misconduct” was invoked before an individual could be suspended. The Court was not satisfied that Mr Justice Peart’s report was prima facie evidence of gross misconduct.
- The Plaintiff was told of the complaint against her on 10th October 2022 and two days later she was informed that she was suspended from adjudication based upon a provision of the Defendant’s Discipline Procedures that was not in place at the time of the text message exchange.
- The Plaintiff had not been given any opportunity to comment or explain the text messages or the context in which they were exchanged before being suspended. The Court found that it was not sufficient that she could provide this explanation at a future disciplinary hearing, noting that by the time a disciplinary hearing was held she could have been suspended for a “considerable period of time.”
Balance of convenience
The Court was also satisfied that the balance of convenience favoured the granting of injunctive relief, finding that the Plaintiff would not be adequately compensated by an award of damages. Although the Court recognised that much of the damage complained of by the Plaintiff arising from her suspension was likely to have already been incurred, it noted that there was “ongoing prejudice and damage to the plaintiff’s health, reputation and well-being” that would not be compensated adequately by an award of damages.
Takeaway for Employers: This case highlights the need to ensure that decisions relating to suspension are made on a case-by-case basis. There can be a tendency for employers to use suspension as a matter of course in response to certain types of allegations. Employers ought to seek legal advice based on a particular factual matrix and consideration should be given to the following:
- The provision, if any, for suspending employees and the parameters of such provision in an employer’s disciplinary policy and procedures.
- The need to ensure that there is a solid, lawful, basis for an employee’s suspension and to keep suspension under review having regard to the detrimental effect of suspension on an employee.
- The need to provide an employee with an opportunity to respond to a complaint or allegation prior to suspension. It is not sufficient for an employer to point to an employee having such an opportunity at a future disciplinary hearing if the complaint/allegation has not been put to him/her before suspension.
There are situations in which an employee’s suspension will be appropriate and lawful. However, employers need to be cognisant of the potential for serious, sometimes irreversible, damage to an employee’s reputation arising from a period of suspension, and the courts will take this into account in assessing the lawfulness, or otherwise, of an employee’s suspension.
Authors – Jenny Wakely and Anne O’Connell
31st March 2023