February 12th, 2024 by James Goudie KC

Article 6 of the ECHR provides for a fair hearing when the determination by a public authority of civil rights and obligations is engaged. However, internal disciplinary proceedings will not generally engage Article 6.

In Ireland there is a constitutional right to fair procedures. This is applicable in the case of disciplinary proceedings in the public or private sector.

In ELICTRICITY SUPPLY BOARD v SHARKEY ( 2024 ) IEHC 65 the Irish High Court holds that an employee is entitled to refuse to answer his employer’s questions whilst a criminal investigation is ongoing; but that entitlement would cease when the criminal investigation ended, or if the employer’s interest in the performance of contractual obligations outweighed the risk of infringement of the individual’s right to silence.

The Judge referred to UNIFORMED SANITATION MEN ASSOCIATION v COMMISSIONER OF SANITATION OF THE CITY OF NEW YORK ( 1968 ) 392 US 80 : demanding answers with a threat of dismissal if the answers are not provided could be considered an “ impermissible compulsion “ , noting that the fear of being dismissed may in many cases be just as much a cause for concern as the threat of a penal sanction.

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