When should your boss call the Garda? The labour law questions raised by Sinn Féin controversies

Two of the controversies involving Sinn Féin in recent weeks highlight challenges organisations face when it comes to issues such as internal investigations and the provision of references, according to employment law and human resources experts.
While the full details of the Brian Stanley case have not been disclosed, those involved in the area say the sort of internal investigation undertaken would, in a workplace context, present an employer with a number of decisions to make. These include how to deal with opposing claims from complainants, and if and when to inform gardaí in an instance where there was an allegation of criminality.
Other workplace dilemmas are highlighted by the Michael McMonagle case in which references were provided by staff members to the party’s former Belfast-based press officer when he successfully applied for a job with the British Heart Foundation. The references were provided despite his employment with Sinn Féin having been terminated after his arrest in relation to child abuse offences – which he initially denied.
Because of fears of litigation, employers increasingly avoid the provision of anything beyond basic details of a person’s role and period of employment in a recruitment process.
“The norm at the moment in Ireland is that people don’t give references any more,” says solicitor Anne O’Connell, whose legal firm specialises in employment law. “They only give statements of employment, the roles held for whatever periods of time, because the whole issue is so fraught.”
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She says an inaccurate reference can result in legal action by a person’s new employer against their previous one, while a more common scenario is an action taken by the worker themselves in a case where they have failed to get a job. “They put in a GDPR data request to see what was said about them,” she says.
She says the fact a person had been arrested might not be mentioned, again because of legal concerns, particularly where they had not been charged, unless the offences related in some way to the role. Establishing whether somebody had been charged with or convicted of an offence might commonly be regarded as a matter for the hiring organisation through background or police checks.
Were references to come from former colleagues, rather than a senior manager, that might be regarded as a red flag, says Ruairi Guckian of Galway-based consultants GHR. “They should only be coming from directors or other senior figures within a company or organisation and should generally be signed off by two senior people because obviously the person may just call a manager or other employee they got on very well with.
“It comes down to having very robust policies in the area,” adds Guckian, who also sees a big move away from providing narrative references because of legal concerns on the part of employers.
In the Stanley case, one party to the dispute has criticised Sinn Féin for not calling in the Garda.
The TD for Laois–Offaly has described as “deeply flawed” an internal investigation carried out by Sinn Féin into a complaint made against him by a person described as a long-standing party member.
[ Sinn Féin row with Brian Stanley deepens over referral of claims to GardaOpens in new window ]
Stanley, who made counter-allegations against the complainant, has said some of the matters raised should have been referred to the Garda but Sinn Féin only did this after he resigned from the party and criticised the process. Party leader Mary Lou McDonald confirmed gardaí were now involved but said she was “not in a position to say whether or not the complaint or the counter allegation meet the standard for criminal investigation”.
Guckian says: “Cases like this in the employment sphere where one person makes a complaint and the other comes back with separate allegations can be difficult because it gives a company or organisation a decision to make.
“Again it comes down to having really strong and clear policies setting out what is expected from people and then what the procedures are going to be when there is an allegation against somebody. The key thing, though, is to ensure that the process is seen to be fair.
“It’s not necessarily the case that you would automatically go to the guards once there’s an allegation of illegality but it really does depend on the individual circumstances.”
O’Connell says there are “some issues where you report the allegations immediately but we don’t know what the allegations are in this case. It all depends very much on the facts and the situation, and the regulations a company or other organisation might be subject to, as to whether or not – or when – you inform the gardaí.
“I think in this situation, what they [got] right is not actually saying what the allegations are when there is the potential for it to become a criminal case, because what you would have is a media court, and it would very difficult for anyone to get a fair and reasonable hearing further down the road.”