Suspensions pending investigation lawful where staff made aware of allegations

Susan Gavin, Mary Lynch and Margaret Deegan (applicants) v Minister for Finance (respondent).

Employment Law - Suspension of employment - Fair procedures - Disciplinary action - Civil service procedures - Judicial review - Audi alteram partem - Nemo iudex in sua causa - Whether suspensions unwarranted and unlawful - Whether respondent had acted ultra vires - Whether suspension warranted warning - Whether normal rules of natural justice applied - Whether constitutional right to earn livelihood interfered with - Civil Service Regulation Act 1956 (No 46) sections 1, 3, 13, 14.

The Supreme Court (the Chief Justice, Mr Justice Keane; Mr Justice Murray and Mr Justice Geoghegan); judgment delivered 12 April 2000.

The respondent was entitled to suspend the applicants from employment pending the outcome of an investigation into alleged irregularities. In accordance with fair procedures the applicants were entitled to be given sufficient detail of the allegations being made against them.

The Chief Justice, Mr Justice Keane, so held in stating that the applicants were aware of the nature of the irregularities being alleged against them and were not precluded from making representations to the suspending authority in order that their suspension might be terminated. Accordingly there had not been a violation of the principles of natural justice or fair procedures in this instance and the applicants' claim against the respondent would therefore be dismissed.

Hugh Hartnett SC and William Fawsitt BL for the first and second applicants; Roderick Horan BL for the third applicant, Anthony Aston SC and Anthony Kerr BL for the respondent.

The Chief Justice, Mr Justice Keane, said that the applicants were employed as cartographers in the Ordnance Survey section of the Department of Finance. Each of the applicants was a civil servant within the meaning of section 1 of the Civil Service Regulation Act 1956 ("the 1956 Act"). The applicants comprised part of the map sales staff and were responsible for supplying maps and photographs on demand to customers. In relation to each such transaction the map sales staff were required to complete a receipt and remit both the receipt and cash to the accounts department. In February 1997 an internal audit was conducted in the map sales office. An official of the Ordnance Survey Department subsequently deposed in an affidavit that in the case of each applicant there was an excess of cash over receipts and that there were receipts issued to customers which did not match the corresponding receipts submitted to accounts. Each of the applicants was subsequently requested to attend the office of a departmental official. Both the first and third applicants attended while the second applicant did not attend as she was on sick leave. At the meeting, which took place on 21 February 1997, the first and third applicants were informed in a letter read out to them that there appeared to be "grave irregularity warranting disciplinary action" and that the charge warranted investigation. The letter went on to say that accordingly the applicants were being suspended without pay pursuant to section 13 of the 1956 Act. A letter in similar terms was sent to the second applicant.

Solicitors acting on behalf of the first and second applicants replied by letter dated 27 February 1997 and requested further clarification of the "grave irregularity". Solicitors acting on behalf of the third applicant wrote on 26 February 1997 stating that they were satisfied that the suspension was unlawful and unwarranted. Furthermore they stated that unless their client was reinstated further action would be taken.

The Chief Justice went on to say that each of the applicants was sent a letter dated 18 March 1997 containing further details as to the allegations being made against them. In addition they were informed that the respondent had approved the payment of two-thirds of the salary to each applicant during the suspension. The applicants initiated judicial review proceedings in the High Court claiming, inter alia, that the respondent had acted ultra vires and had infringed the applicants' constitutional rights in failing to afford the applicants an opportunity of hearing the allegations against them or challenging same. In addition the applicants alleged that they were suspended without being notified of the grounds of suspension and that due regard to fair procedures and that the applicants' right to earn a livelihood had not been observed.

In the High Court Mr Justice O'Higgins was satisfied that insufficient detail had been afforded to the applicants concerning the allegations being made against them. In addition Mr Justice O'Higgins relied on certain dicta of Miss Justice Carroll in Ni Bheolain v City of Dublin Vocational Education Committee (High Court, 28 January 1983, unreported). Mr Justice O'Higgins stated that suspension without some form of advance warning would be a denial of fair procedures. In the present case Mr Justice O'Higgins remarked that no reason had been given for the failure to seek explanations from the applicants. Mr Justice O'Higgins therefore held that the applicants were entitled to succeed in their claim.

The Chief Justice went to say that it was the contention of the respondent and it was submitted by Mr Aston SC that when a decision was taken to suspend a civil servant, in order that an inquiry into suspected irregularities can be carried out, the normal rules of justice or fair procedures do not apply as the person in question was not being disciplined. The suspension procedure would, it was claimed, be frustrated if the person in question were to be afforded the protections as envisaged in In Re Haughey [1971] 217. The applicants were, it was submitted, entitled to an adequate statement of the reasons for the suspension in order that steps could be taken to alleviate or cancel the suspension. In this regard Mr Aston SC cited the cases of Lewis v Heffer [1978] 3 All ER and the judgment of Mr Justice Henchy in Flynn v An Post [1987] IR 68. On behalf of the first and second applicants Mr Hartnett SC submitted that the suspension of the applicants was clearly a disciplinary procedure and an extremely serious one in that it deprived the applicants of their livelihood, left them under a cloud of suspicion and was seriously damaging to their constitutionally guaranteed right to their good name. In addition it was alleged that, as could be seen in the letter dated 21 February 1997, it had already been decided that the applicants were guilty of a grave irregularity warranting disciplinary action.

Mr Horan BL on behalf of the third named applicant had likewise adopted the arguments of his colleague. In addition it was submitted that his client had already submitted a reasonable explanation of the alleged irregularities. Counsel also argued that his client was entitled to the specific details of the allegations being made against her.

The Chief Justice was satisfied that the suspension of a person from employment because of irregularities or misconduct can constitute a form of disciplinary action. This would entitle the person affected to be afforded natural justice or fair procedures before the decision to suspend was taken. The consequences of such a decision can be extremely serious and in this regard the Chief Justice referred to the case of John v Rees [1969] 2 All ER. However the Chief Justice remarked that, in the aforesaid case, although a suspension had been imposed, it had not been so imposed in order that an inquiry could be carried out. Such a distinction was important and had been emphasised in a judgment delivered by Lord Denning MR in Lewis v Heffer [1978] 3 All ER. In this case Lord Denning had taken the view that suspensions imposed pending enquiries are carried out for reasons of good administration. The Chief Justice was satisfied that such a distinction accorded both with the general law and with common sense and should be applied to the present case. This was not however to say that fair procedures and natural justice did not have a role in the present case in that the applicants had the right to make representations regarding their suspension pursuant to section 13(2) of the 1956 Act.

The Chief Justice stated that it was clear both implicitly from the judgment of Mr Justice McCarthy and had been expressly stated in the judgment of Mr Justice Henchy in the case of Flynn v An Post [1987] IR 68 that the provisions of section 13 of the 1956 Act require that a person so suspended was entitled to be informed of the reasons for the suspension. This would enable the person in question to make the appropriate representations. In the light of the foregoing and having made a detailed examination of the affidavits of both the applicants and of the relevant departmental official the Chief Justice considered whether the applicants had been afforded the opportunity to make representations. The Chief Justice was satisfied that each of the applicants was aware of the nature of the irregularities being alleged them. The letter dated 21 February 1997 had informed them of their suspension and they had been informed of the nature of the irregularities being alleged them in the letter dated 18 March 1997. They had not in any way been precluded from making such representations, as they thought fit, to the suspending authority in order that the suspensions might be terminated.

Accordingly the Chief Justice could not agree with the conclusions reached by the learned High Court judge that there had been a violation of natural justice and of fair procedures. The appeal of the respondent would therefore be allowed an order would issue dismissing the applicants' claim.

Mr Justice Murray and Mr Justice Geoghegan concurred.

Solicitors: Garrett Sheehan & Co (Dublin) for the first and second applicants; David Walley & Co (Dublin) for the third applicant; Chief State Solicitor for the respondent.