IRFU & Ulster Rugby Must Comply with Employment Law Not Public Opinion

In light of the public and social media outburst of opinions about the verdict and evidence from the criminal rape trial the IRFU and Ulster Rugby are faced with a very difficult task to ensure that they comply with employment law in their review of Paddy Jackson and Stuart Olding. Regardless of the public’s opinion and the personal opinions of the panel that have been appointed to carry out the internal reviews, Jackson and Olding are entitled to fair procedures in line with natural justice and their Constitutional rights in respect their employment. Furthermore, the procedures must comply not only with the employment law of Northern Ireland but also with that of the Republic of Ireland, which are slightly different, on the assumption that the IRFU contracts are governed by Irish law.

The IRFU and Ulster Rugby should only consider whether or not Jackson and/or Olding have breached a term or condition of their employment including implied terms. Unlike in an office environment, neither Jackson nor Olding are required to interact with women as part of their duties of employment.

Furthermore, in relation to any allegation that they may have put the IRFU and/or Ulster Rugby organisations into disrepute by their admitted behaviour the following must be considered:

• The messages were private messages and not public posts or tweets and were clearly not for public viewing. If there was no criminal allegations, for which they have been found not guilty, then these messages would never have been seen by the public and therefore would not have had any adverse impact on the public. The IRFU and/or Ulster Rugby must be careful in respect of any reliance on these messages which they would not have been entitled to see in the normal course.- The incident occurred in a private house and not at the workplace or any venue at which they were at due to their work or a public venue.
• There is no evidence of either Jackson or Olding publicly encouraging others to follow their admitted behaviour.

Whether or not the public likes it, the law requires that Jackson and Olding should not be victimised by their employers for being subject to criminal allegations which were not upheld.

If the IRFU and Ulster Rugby decide to subject Jackson and/or Olding to a disciplinary process then they will be required to:

• a) clearly set the allegations of breach of their terms and conditions of employment;
• b) listen to what Jackson and Olding have to say about the allegations;
• c) ensure that the decision makers have not made any pre-determination on the allegations before hearing Jackson and/or Olding (this will be close to impossible to prove);
• d) ensure that a sanction, if any, is reasonable and proportionate and in line with the terms of their contracts, taking into account the period of suspension already incurred; and
• e) be mindful of the different requirements of the two relevant legal jurisdictions.

Unlike the jurors in the criminal case, the IRFU and/or Ulster Rugby can be sued by Jackson and/or Olding if they fail to comply with their legal rights and entitlements in respect of their employment. Therefore it is vital that the IRFU and/or Ulster Rugby afford Jackson and Olding their legal rights and entitlements before making any decisions and not let their decisions be governed by personal or public views.

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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