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Does an employee have a right to silence?

Investigations February 14, 2024

A question which frequently comes up on our training courses is whether employees are obliged to comply with employer investigations and whether an employee has a right to silence when questioned in the course of such an investigation.

Employers are confronted with a variety of scenarios which require investigation. These range from an accusation of bullying in the workplace, theft of company property, or to a workplace accident. These incidents usually require the employer to identify relevant parties and witnesses, and often these must be formally interviewed.

Employees, naturally, may be suspicious or worried about such investigations, particularly the interview stage. They may feel that they are the target of the investigation or might fear that damaging information may come to light during the interview which puts their job in jeopardy. It is not unusual, then, for them to request a solicitor, trade union representative or simply a colleague to sit in during the interview. The employee may feel squeamish in answering questions put to them, may obfuscate or refuse to answer. It is not unknown for employees to flat out refuse to cooperate in any shape or form with the investigation, claiming that they have a right of silence and that their employer has no power to compel them to comply.

So, what then can an employer do? Can they compel compliance? Does the employee have a right to silence?

This question arose in the recent case of Electricity Supply Board -v- Kieran Sharkey [2024] IEHC 65 where the High Court was asked whether an employee had a right to refuse to answer questions put to him by ESB in an internal investigation. The employee claimed that the constitutional right to silence in criminal investigations extended to employer investigations, a point contested by ESB who said that the employee was bound by the terms of their employment to comply with their internal investigation. ESB sought an order compelling the employee to answer questions put to him by ESB.

The High Court (Mulcahy J.) confirmed that an employee does indeed have a right to silence, but a limited one, heavily dependant on context. Only where there is an ongoing criminal investigation running parallel to the employer’s own investigation does the right of silence occur, and that right ends as soon as the criminal investigation ends.

Therefore, if an employee’s contract of employment obliges them to comply with an investigation, they must oblige their employer, and the right to silence only arises where there is a parallel criminal investigation.

Interviewing employees and carrying out internal investigations, whether it is an enquiry into a employment dispute, disciplinary matter, accident or incident with a third party are all matters dealt with by La Touche Training’s suite of Investigations courses.

For further details on how to train staff to properly conduct internal investigations, contact us now.

You can also download our Investigation courses brochure here

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