Threat to discipline 12,000 gardaí is empty and unrealistic

Opinion: At rate of two disciplinary hearings a day, it would take 17 years to deal with cases

If a garda does not follow an order, he is subject to the normal disciplinary processes, which ultimately can end up in anything from a warning, right up to dismissal.

Gardaí, in the past have been dismissed for criminal offences.

In this case, Garda Commissioner Nóirín O’Sullivan has issued a direct order to more than 12,000 people.

It is physically impossible and administratively impossible to discipline this number of individuals.

READ MORE

Each of them would have to be called to a disciplinary meeting, each of them would have to have the full disciplinary process gone through and the full appeals process gone through.

Even at a rate of two disciplinary meetings a day, it would take 17 years. That is not a realistic option.

And Garda authorities cannot decide to make an example of a small number of gardaí, due to a decision in the High Court in the case of Bank of Ireland v Kelly, in 2015.

In that case, there were a number of individuals who had allegations of similar misconduct. One of them was investigated and fired and the High Court ordered he be reinstated, because he had been treated differently from others who had allegedly been similarly at fault.

So a small number of gardaí cannot just be disciplined as an example, because that is not fair procedure.

There is a legal prohibition on gardaí going on strike, although this has never been tested.

However, prosecuting gardaí would clog up the court system, because for each garda you would need a full District Court or Circuit Court hearing and an appeal.

And you would have to run a full case? Who serves the summonses? And how do you deal with putting in a penalty against more than 12,000 gardaí?

What happens if they don’t turn up to court? Who is going to go and execute the bench warrant?

I do not know of any employment lawyer who would tell an employer to issue an order to a large number of employees without being prepared to carry that through the disciplinary process or whatever processes there are.

You would be told “do not issue it unless you are prepared to carry it out”.

It is an empty threat.

The whole matter of issuing this instruction is ludicrous.

In my view it has simply been done for the purposes of being seen to do something. But everybody knows it has absolutely no realistic force.

It may have legal force, but it has no practical force whatsoever.

Richard Grogan is a solicitor specialising in employment law