An ESB network technician was entitled, for the time being, to refuse his employer’s questions about alleged payments while he was the subject of a Garda investigation, the High Court has ruled. The court said the entitlement could end if the investigation concluded or if ESB showed that its interest in answers outweighed the risk to his constitutional right to silence.
Mr Justice Rory Mulcahy delivered the ruling on a preliminary question in proceedings brought by the Electricity Supply Board against Kieran Sharkey. ESB had asked the court to declare that Mr Sharkey’s refusal repudiated his employment contract, or alternatively to compel him to provide information. The judge answered the first of three agreed legal questions with a qualified “yes”. The questions about repudiation and the date of any termination therefore did not arise for decision. The matter was listed for final orders on 1 March 2024; the judgment does not state what final orders were later made.
ESB’s questions followed allegations made to it by two developers, Richmond Homes and Arkmount Construction, that employees had sought cash payments to expedite works. A Richmond representative alleged that Mr Sharkey told him to pay €50 per meter for installations at a Malahide development. The judgment records no allegation that Mr Sharkey received those payments. The representative also alleged that Mr Sharkey asked for tiling work at his home, which he said was charged at probably below cost. These were allegations, not findings by the court.
ESB reported the allegations to Gardaí in June 2022. Gardaí searched Mr Sharkey’s home and vehicle in July and seized two phones. He was told he was under investigation for bribery and corruption connected with his ESB work. Mr Sharkey denied wrongdoing but, on legal advice, declined to answer ESB’s questions about whether he had asked for or received payments or other benefits.
The parties agreed that employees must follow lawful and reasonable directions from ESB and that the information request would ordinarily fall within that obligation. ESB argued that the employment contract applied despite the investigation. Mr Sharkey argued that answers could tend to incriminate him and be used in a criminal investigation or prosecution.
The judge rejected both sides’ claims to an absolute rule. He held that constitutional rights can affect private employment relationships and that dismissal could amount to pressure to give up the right to silence. But he did not decide that ESB could never require answers or discipline a refusal. ESB must assess the competing interests, including the need to investigate and the risk to Mr Sharkey’s rights. The court could review that assessment if necessary; it did not carry out the balancing exercise on the limited agreed facts before it.