A recent Court of Appeal decision in the case of Hegarty v The Commissioner of An Garda...

A recent Court of Appeal decision in the case of Hegarty v The Commissioner of An Garda Siochana [2023] IECA 266 reinforces the principle that an employee can never be disciplined twice for the same incident.

Facts:

In this case a member of An Garda Siochana (Mr. Hegarty) was accused of two breaches of discipline.

Allegation 1: The first allegation was that he had engaged in a sexual act with a “complainant” while on duty during the course of taking a statement of evidence from her relating to the arrest of her sister.

Allegation 2: The second allegation was that he failed to record a statement of evidence from the “complainant” relating to the arrest of her sister in accordance with proper procedure and his duty to do so.

Both allegations were admitted by the Garda.

Much of the Court’s Judgement talks about specific statutory provisions that are relevant to disciplinary processes concerning members of An Garda Siochana. As those provisions are not relevant to employers generally this Article will not discuss them in any detail. Suffice to say that the below represents a high-level summary of the process that was followed.

A Board of Inquiry (“the Board”) heard the allegations and issued a report to the Commissioner of An Garda Siochana (hereafter “the Commissioner”).

In line with the applicable disciplinary process, it would appear there were four potential disciplinary actions that could be considered namely dismissal, a requirement to retire or resign as an alternative to dismissal, a reduction in rank or a reduction in pay not exceeding 4 weeks.

In respect of Allegation 1, the Board recommended that Mr. Hegarty retire or resign from the force as an alternative to dismissal. In respect of Allegation 2, the Board recommended that Mr. Hegarty be subjected to two weeks deduction in pay.

The Commissioner accepted these recommendations. However, Mr. Hegarty exercised his right to appeal. In line with procedure an independent appeal board was then established (the “Appeal Board”). Pending the outcome of the appeal, Mr. Hegarty was suspended from duty, as is the norm in such appeals.

The outcome of the appeal was that the Appeal Board left in place the sanction of a two week pay deduction in respect of Allegation 2 but in respect of Allegation 1 reduced the sanction from requiring Mr. Hegarty to resign or retire to a temporary reduction of 4 weeks pay.

In arriving at its view, “the Appeal Board considered a number of factors, including the circumstances of the commission of the breach, the applicant’s previous unblemished record and other mitigating factors”.

Of significant relevance in this case is Section 14 of the Garda Síochána Act 2005 (“the 2005 Act”). Section 14 includes a provision which, subject to certain procedural safeguards allows the Commissioner to dismiss a member where in the opinion of the Commissioner by reason of the member’s conduct, his or her continued membership would undermine public confidence in An Garda Síochána, and the dismissal of the member is necessary to maintain that confidence,

Notwithstanding the Appeal Board’s decision to reduce the sanction of requiring Mr. Hegarty to resign or retire, Mr. Hegarty found himself subject to a further suspension. He received notification that he was suspended from 24 January 2020 to 1 February 2020 and the reason for the suspension was “consideration by [the Commissioner] of the position of [the applicant] pursuant to s. 14 of the [2005 Act] as amended”. Thereafter Mr. Hegarty’s suspension was continued from time to time.

On 31st March, 2023, the Commissioner wrote to Mr. Hegarty outlining that he was of the opinion Mr. Hegarty’s behaviour and conduct had been incompatible with membership of An Garda Síochána and that his continued membership was untenable given the requirement for the maintenance of public confidence and trust in An Garda Síochána. The letter concluded by advising Mr. Hegarty that he would now have an opportunity to put forward any representations or responses he may wish to make, including any reasons why The Commissioner should not dismiss him.

Mr. Hegarty challenged this by way of a Judicial Review application to the High Court.

Decision:

The High Court upheld Mr. Hegarty’s challenge and found that the Commissioner’s exceptional powers under Section 14 of the Act had been invoked in breach of Mr. Hegarty’s rights to constitutional justice on the facts of this case.

The High Court decision was appealed to the Court of Appeal. The Court of Appeal judgement engages in a detailed consideration of all of the technical legal arguments at play in this case but ultimately rejected the Commissioner’s appeal.

Takeaway for Employers:

The principle that an employee cannot be subjected to a second disciplinary process/sanction for the same incident goes to the very heart of the rules of due process and fair procedure. Even in the extremities of the facts of this case the Courts were not willing to allow it.

In light of this it is very difficult to imagine any scenario where an employer will be legally entitled to impose any kind of additional sanction on an employee where that employee has already been previously disciplined for the incident in question.

Author – Laura Killelea