This was the primary question before the High Court in Electricity Board Supply v Kieran Sharkey [2024] IEHC 65.  The Court concluded that an employee may refuse to comply with reasonable directions of their employer but only where the risk to their right to silence outweighs their employer’s interest in requiring them to fulfil their contractual obligations. 

The Facts

Two property developers alleged that certain employees of the Electricity Supply Board (ESB) were demanding cash payments and other consideration for expediting the completion of works. ESB reported these allegations to the Gardaí, who commenced a criminal investigation. 

ESB concurrently carried out its own investigation into the allegations.  As part of this, it issued High Court proceedings against the developers, seeking an order to require them to disclose certain information. On the conclusion of these proceedings and following the publication of a news article about the allegations, ESB wrote to the employees in question to request further information from them about their alleged conduct.  While denying any wrongdoing, the Defendant refused to provide the requested information, invoking his right to silence. 

ESB contended that the Defendant’s refusal to respond to their questions amounted to a repudiation of his contract of employment, warranting summary dismissal and initiated the proceedings seeking declaratory relief to that effect.  ESB argued that the right to silence did not arise in this context as there was no risk of abuse of power by the State or unreliable confessions. It submitted that the Defendant invoked his right to silence prematurely and that the appropriate forum for the invocation of his right was at a criminal trial if the prosecution sought to rely on his answers given to ESB.  It asserted that the right to silence only arises where statements given may be admissible as evidence but, as the Defendant’s employer, it was not placed nor required to assess the future admissibility of his responses. 

The Decision

The Court rejected ESB’s argument that the right to silence is limited to the prevention of the abuse of power. It acknowledged that the right is not absolute but held that caselaw recognised that it is a constitutional right, which is engaged where there is a risk that a person is compelled to provide testimony which may tend to incriminate them.  The test to consider is (1) whether a person is acting under compulsion and (2) if there is a risk their testimony may be relied on in a criminal trial.

Relying on the judgement in Wicklow CC v Reilly, which was cited by both parties, the Court held that:

“In order to determine whether [the Defendant] can be required to answer questions while the criminal investigation is in being, [ESB] must… commence a process in which it carries out an assessment of the competing interests involved.”

In Wicklow CC v Reilly, it was held that when determining the applicability of the right to silence in civil proceedings, the need to afford parties to the proceedings a timely resolution and the benefit of any orders granted must be balanced against the extent to which there may be a real risk that criminal proceedings could be prejudiced.   The Court found that, despite relying on this judgment, ESB had failed to carry out any balancing exercise and so it was premature to treat the Defendant’s contract as repudiated.  The Court stated that:

“Any balancing of rights is not solely a question of law and, in any event could not be carried out on the basis of the limited agreed facts… ESB will have to consider the importance of being able to pursue the matter in advance of the Garda investigation being concluded. In this regard, the fact [the Defendant] has continued in his employment without being suspended is capable of being regarded as a factor which increases the urgency of ESBs investigation…”

It was held that the Defendant was entitled to refuse to respond to the ESB questions for now, but that entitlement would cease as soon as either the criminal investigation concludes or ESB can establish that its interests outweigh the potential risk of infringing on the Defendant’s right to silence.

Conclusion

In this case ESB reported the matter to the Gardaí and then carried out its own internal investigation. As a consequence of this, the employee successfully asserted his right to silence in this course of the ESB’s internal investigation.  That right is effective (because there was no ESB assessment of the competing interests) but time limited until the conclusion of the Garda investigation or until ESB carry out a balancing exercise which would stand up to judicial scrutiny.