Judge reserves decision in Clerys raid on D2 offices

The seizure of "privileged and confidential information" from the offices of a Dublin property company by inspectors conducting an ongoing criminal investigation into the collective redundancies at Clerys was "wholly unlawful", the High Court has been told.

Inspectors appointed by the Workplace Relations Commission entered the offices of D2 Private, a company linked to the take over of the department store, at Harcourt Terrace, Dublin, last May and removed items including a laptop computer and some documents, including invoices.

Their investigation arose after 460 workers lost their jobs on June 12th, 2015, hours after Clerys was sold to a joint venture, Natrium, by its previous owners, the US Gordon Brothers group.

Natrium is made up of UK-based Cheyne Capital Management and a company of Deirdre Foley, owner of D2.

In High Court proceedings against the inspectors and commission, Ms Foley and D2 Private claim the inspectors were not entitled to enter the office and take the materials. They say they were never the employers of the Clerys workers; and that OCS Operations Ltd was at all times the employer and the decision to make the workers redundant was made independently of D2 and Ms Foley.

The challenge concerns the powers of the inspectors and their reliance on provisions of the 1977 Protection of Employment Act and the 2015 Workplace Relations Act to enter the D2 Private premises and take documents.

Ms Foley and D2 claim the inspectors may only take documents and materials relevant to their investigation and there was no constitutional basis for the inspectors’ actions. The commission and inspectors deny the claims.

In submissions on Thursday, Remy Farrell SC, for Ms Foley and D2, said the seizure of the documents and laptop was “wholly unlawful” and breached his clients’ privacy rights.

Materials on the computer were privileged and highly confidential and, while the computer had been returned, a forensic copy of all the data on it has been retained by the inspectors, he said.

The powers under which the inspectors purported to act in entering the offices and seizing the documents were “draconian” and akin to “traffic wardens dropping on ropes from helicopters”, he argued.

The inspectors’ cannot lawfully enter the premises of a company that is not the employer of the Clerys workers and demand the production of materials merely because it was a place where persons are employed, he also argued.

A “directors pack” which the inspectors’ have linked to D2 could not be categorised as employment records of the Clerys workers, he submitted.

Counsel also rejected claims the challenge was aimed at halting the overall investigation into the collective redundancies.

In opposing the challenge, the Workplace Relations Commission and inspectors say the inspectors’ decision to enter D2’s offices was a legitimate one made in the public interest. The inspectors say they “acted with all reasonableness” during “exercise of a statutory power” and did not breach the privacy rights of D2 and Ms Foley.

The hearing has concluded after five days and Mr Justice Michael Twomey reserved his decision to an unspecified date.