Lawyers at McCann FitzGerald say that the High Court has answered with “a qualified ‘yes’” the question of whether the right to silence allows an employee to lawfully refuse to comply with an employer’s directions .

The lawyers say that the court’s comments should be considered by employers in the context of investigative or disciplinary proceedings that overlap with criminal complaints.

The case arose after the ESB wrote to an employee asking him to provide answers to questions about certain matters alleged to have occurred during his employment.

Right to silence

The defendant, who is also the subject of a criminal investigation linked to these issues, denied wrongdoing, but otherwise refused to answer any questions, invoking his right to silence.

The ESB had been seeking a declaration that the defendant, by refusing to answer questions, had repudiated his contract of employment, or that it was entitled to treat his contract of employment as having been terminated.

Alternatively, the ESB had sought an order compelling the defendant to disclose certain information to it.

‘Balancing exercise’

Mr Justice Rory Mulcahy found that the defendant was entitled to refuse to comply with the ESB’s directions “for the time being”.

“However, that entitlement will cease as soon as the criminal investigation into the defendant is at an end, or the plaintiff can establish that its interest in insisting on the performance by the defendant of his contractual obligations outweighs the risk of infringement of the defendant’s constitutionally protected right to silence,” the judge stated.

He added that it was for the ESB, not the court, to carry out this “balancing exercise”.

The McCann FitzGerald lawyers say that the case supports the proposition that there is no general right to silence in an employment context, and that employees are not entitled, in disciplinary proceedings, “to simply say to their employers: ‘prove your case’.”

“Nonetheless, where a criminal investigation is extant, an employee might seek to invoke the right to silence in internal investigative or disciplinary matters where these overlap with the criminal complaint,” they note.