A High Court judge has ruled that for now an ESB employee does not have to answer questions put to him by the company about alleged payments solicited from builders.
In a judgment on Friday, Mr Justice Rory Mulcahy ruled that this entitlement will cease when the criminal investigation into Kieran Sharkey ends or when the ESB can re-establish that “its interests in insisting on the performance by Mr Sharkey of his contractual obligations outweigh the risk of infringement of his constitutionally protected right to silence”.
The ESB sought a declaration from the court that Mr Sharkey had breached his contract of employment by failing to answer questions put to him by the company about the allegations.
The ruling relates to allegations made last year that several ESB workers sought unlawful payments from developers and builders in return for favourable treatment when carrying out works including connecting projects to the national grid.
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The allegations came to light in separate proceedings brought by the ESB where it seeks orders requiring two building companies to share information about several ESB employees who, the building companies alleged, sought cash payments to complete electrical works near construction sites.
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The court heard Mr Sharkey had been referred to the ESB as being one of the individuals allegedly involved in seeking payments from customers.
Last year, the ESB asked Mr Sharkey to answer questions including if he had accepted any payments from any party for preferential treatment.
He was also asked that, if he did seek payments, who did he get money from, what amounts were involved and what works were provided in exchange for the payments.
The ESB claimed Mr Sharkey, whose home was searched by gardaí as part of the investigation into the allegations, refused to answer any of its questions.
Mr Sharkey said that after obtaining legal advice, and because the matter was the subject of a Garda investigation, he was invoking his right to silence to prevent any prospect of self-incrimination. He said he had done nothing wrong,
The ESB claimed the refusal to answer the questions meant Mr Sharkey breached his contract of employment and, therefore, his employment was at an end.
The ESB claimed the right to silence as claimed by Mr Sharkey does not exist in the context of a private law dispute between the ESB and its employee.
That right only relates to situations where a person is being asked to answer questions put to them by an entity of the State such as An Garda Siochana, it claimed.
Represented by Michael O’Higgins SC, instructed by solicitor Robert Dore, Mr Sharkey, an electrician with the ESB from Finglas in Dublin, denies any wrongdoing.
The ESB was not entitled to any declaration from the court that would allow it to summarily fire their client for not answering the questions put to him, he argued.
Mr Sharkey has a good record of employment with the ESB, for whom he has worked since 2017, the court heard.
In his ruling, the judge said it would not be appropriate for the court to simply state that the ESB could never discipline Mr Sharkey for failure to answer the questions put to him.
Mr Justice Mulcahy said the defendant accepts that once he is no longer subject to the criminal investigation he must answer the questions or face the consequences of his refusal to do so.
Mr Sharkey also accepts that “the right to silence is not absolute”, the judge said.
While the criminal investigation is ongoing, the ESB must commence a process of assessing the competing interests involved which, if necessary, can be reviewed by the court, he said.
He said the ESB failed to take account of Mr Sharkey’s “privilege against self-incrimination” by demanding answers to its questions. It would be premature to penalise the defendant for failing to answer them, he said.
The judge also noted that Mr Sharkey has remained in his employment without being suspended.
The judge said the parties agreed it would be possible to obtain confirmation from An Garda Síochána that the criminal investigation into the defendant had closed.
It was at least questionable whether the defendant’s reliance on his constitutional rights could continue to be available to him indefinitely if the criminal investigation were not closed, the judge added.
The matter will return before the court later this month.
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