Delaney v Central Bank of Ireland

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] IEHC 212
• Court: High Court
• Date: 15 April 2011

[2011] IEHC 212

THE HIGH COURT

[No. 2378P/2008]

Delaney v Central Bank of Ireland

BETWEEN

JOHN DELANEY

PLAINTIFF

AND

CENTRAL BANK OF IRELAND

DEFENDANT

EMPLOYMENT EQUALITY ACT 1998 S16(3)

DPP v MOORE UNREP CCA 20.12.2005 2005 IECCA 141

O'DONOGHUE v SOUTH EASTERN HEALTH BOARD 2005 4 IR 217 2005/47/9861 2005 IEHC 349

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S23

UNITED BANK LTD v AKHTAR 1989 IRLR 507

BLISS v SOUTH EAST THAMES REGIONAL HEALTH AUTHORITY 1987 ICR 700 1985 IRLR 308

DEADMAN v BRISTOL CITY COUNCIL 2007 IRLR 888 2008 PIQR P2 2007 EWCA CIV 822 2007 AER (D) 494 (JUL)

GLOVER v BLN LTD & ORS 1973 IR 388

ROCK v CIVIL SERVICE CMSN & ORS UNREP MURPHY 27.3.1990 1999/22/7204

AHERN v MIN FOR INDUSTRY & CONTROLLER OF PATENTS DESIGNS & TRADEMARKS (NO 2) 1991 1 IR 462 1991 ILT 127 1990/6/1411

R v KENT POLICE AUTHORITY & ORS, EX PARTE GODDEN 1971 2 QB 662 1971 3 WLR 416 1971 3 AER 20

FITZPATRICK v BOARD OF MANAGEMENT OF ST MARYS TOURANEENA NATIONAL SCHOOL & ANOR UNREP IRVINE 24.7.2008 (EX TEMPORE)

EMPLOYMENT

Contract

Fitness for work assessment - Referral to forensic psychiatrist - Fair procedures - Natural justice - Audi alteram partem - Nemo iudex in causa sua - Failure to give notice of basis of assessment - Failure to furnish documentation - Failure to allow comment on documentation - Failure to initiate grievance procedure prior to assessment - Prejudice - Bias - Duty of trust and confidence - Disciplinary sanction - Placement on compulsory sick leave - Right to earn livelihood - Whether breach of employment contract - Whether right to fair procedures breached - Whether second interview remedied breach - Whether authority to require attendance at psychiatrist - Whether defendant acted fairly, properly and reasonably as responsible employer would - Whether procedural deficiencies in defendant's approach - People (DPP) v Moore [2005] IECCA 141, (Unrep, CCA, 20/12/2005); O'Donoghue v South Eastern Health Board [2005] IEHC 349, [2005] 4 IR 217; United Bank Ltd v Akhtar [1989] IRLR 507; Bliss v South East Thames Regional Health Authority [1985] IRLR 308; Deadman v Bristol City Council [2007] EWCA Civ 822, [2007] IRLR 888; Glover v BNL Ltd [1973] IR 388; Rock v Civil Service Commission (Unrep, Murphy J, 27/3/1990); Ahern v Minister for Industry and Commerce (No 2) [1991] 1 IR 462; R v Kent Police, ex p Godden [1971] 2 QB 662 and Fitzpatrick v Board of Management of St Marys Touraneena National School (Unrep, Irvine J, 24/7/2008) considered- Safety, Health and Welfare at Work Act 2005 (No 10), s 23 - Employment Equality Act 1998 (No 21), s 16(3) - Declaratory relief granted (2008/2378P - Laffoy J - 15/4/2011) [2011] IEHC 212

Delaney v Central Bank of Ireland

1 Judgment of Miss Justice Laffoy delivered on 15th day of April, 2011.

1. The case and the defence to it on the pleadings

2 2 1.1 These proceedings were commenced by plenary summons which issued on 20 ^th March, 2008. At that stage, the seminal event at the heart of these proceedings had not yet occurred. That was the notification by the solicitors for the defendant (the Bank), the plaintiff's employer, to the plaintiff's solicitors by letter dated 7 ^th July, 2008 that, in the light of a report which the Bank had received from Dr. Damian Mohan, Consultant Forensic Psychiatrist, which was dated 30 ^th May, 2008 and which I will consider in depth later, and Dr. Mohan's views*** in relation to the seriousness of the plaintiff's condition, the Bank required that the plaintiff should not return to work on 10 ^th July, 2008. The plaintiff did not return to work on 10 ^th July, 2008 and he has not been permitted to return to work since. He is being treated by the Bank as being on sick leave and in accordance with the Bank's Sick Leave Regulations, having used up 183 days sick leave at full pay and 184 days sick leave at half pay, he has been receiving the "pension rate of pay", which the Court was told, in his case, represents forty per cent of his normal gross salary and seventy five per cent of full service pension. In the plenary summons, the plaintiff claimed a broad range of reliefs: declaratory relief; injunctive relief and damages for various alleged wrongs. At the hearing, counsel for the plaintiff did not pursue any relief other than a very discrete form of declaratory relief. In outlining the case as pleaded in the statement of claim and as responded to in the defence, I propose to focus on the pleas on which the relief now sought is based.

3 3 1.2 The statement of claim was delivered on 30 ^th March, 2009, after the seminal event, and the defence was delivered on 30 ^th June, 2009.

4 4 1.3 In the statement of claim, having pleaded the facts in relation to his employment by the Bank - that he was employed as an economist in November 2001 and was promoted to the position of senior economist in 2002 - the plaintiff pleaded the following matters:

5 (a) On 29 ^th March, 2006 he had made a complaint to a Rights Commissioner of bullying and harassment against the manager of the department of the Bank in which he worked.

6 (b) By agreement, an external investigator had been appointed to investigate the complaints. By a submission dated 23 ^rd November, 2006 the plaintiff had made a "full complaint under the grievance procedure" to be adjudicated upon by the mutually agreed investigator, Dr. Brian Aylward. In that submission he had made complaints of bullying against the former manager referred to a (a) above and his successor, and complaints against two other parties.

7 (c) Dr. Aylward produced a report dated 3 ^rd January, 2008 in which the plaintiff's complaints of bullying were not upheld, certain findings were made against employees of the Bank, but there was no finding that the plaintiff made frivolous or vexatious complaints.

8 In answering those allegations in the defence, the Bank put the plaintiff on proof, save that the appointment of Dr. Aylward was admitted and the fact that he produced his report on 3 ^rd January, 2008, in which the complaints of bullying were not upheld. It was further pleaded that, insofar as Dr. Aylward made certain other findings against employees of the Bank, these comprised two occasions only of inappropriate behaviour and none of bullying.

9 5 1.4 The plaintiff pleaded that, following the making of the complaint referred to above, the plaintiff was isolated in the workplace, particularising aspects of that allegation, and further that, beginning in November 2007, a decision was made to exclude him from attending meetings outside the Bank or being involved in external work including European Commission related meetings and tasks. Those allegations were denied in the defence. The plaintiff then pleaded the circumstances in which he came to be the subject of Dr. Mohan's report. As a result of a letter dated 17 ^th October, 2007 from the Human Resources Manager of the Bank to him advising him of management concerns regarding his mental health and wellbeing and of an appointment for him to see Dr. Mohan, he attended Dr. Mohan, the correct date of the interview being 20 ^th December, 2007. Having asserted that his general practitioner, Dr. Aidan Ward, had reported on 19 ^th February, 2008 that he did not suffer from a mental illness and was fit for work, the plaintiff pleaded that Dr. Mohan's report of 30 ^th May, 2008, on the basis of Dr. Mohan's diagnosis, recommended that he be placed on sick leave until such time as he responded to treatment. He then pleaded the letter of 7 ^th July, 2008 and that he had not been permitted by the Bank to return to work. The plaintiff also pleaded that, subsequently, he was examined by Dr. Abbie Lane, Consultant Psychiatrist, who concluded in her report dated 9 ^th February, 2009 that he was fit to return to work. In the defence, the plaintiff was put on proof of all of those allegations. It was admitted that Dr. Lane's report had been furnished to the Bank, but the Bank had not allowed the plaintiff to return to work but, instead, had requested the plaintiff to attend for further assessment by a third psychiatrist.

10 6 1.5 The plaintiff then pleaded that by reason of the matters pleaded earlier, the Bank was in breach of the plaintiff's employment contract including the implied duty of trust and confidence owed by the employer to the employee and was guilty of specified wrongs, including breach of the plaintiff's constitutional right to earn a livelihood. The particulars of the alleged wrongdoing on the part of the Bank which form the basis of the relief now claimed by the plaintiff against the Bank are -

11 (a) requiring the plaintiff to undergo examination by a psychiatrist appointed by the Bank, where this was not justified and, in particular, where a general practitioner had not required it,

12 (b) relying on the report of Dr. Mohan to exclude the plaintiff from his duties without affording the plaintiff an opportunity to rebut its contents,

13 (c) improperly seeking to influence Dr. Mohan in the compilation of his report,

14 (d) furnishing information to Dr. Mohan upon which his report was based, which information was not furnished to the plaintiff,

15 (e) relying on the report of Dr. Mohan which it was alleged was fundamentally flawed, in circumstances where there was compelling evidence from the plaintiff's medical advisors that he did not and does not suffer from a mental illness,

16 (f) allowing persons against whom complaints had been made to Dr. Aylward to make decisions regarding the referral of the plaintiff to a psychiatrist "without having a person independent of those persons to vet the decision to assess for objectivity", and

17 (g) excluding the plaintiff from the workplace, imposing an unlawful disciplinary sanction on him in the absence of fair procedures and, in effect,...