Ireland: Good Decision-Making For Public Bodies, Guide 3: Fair Procedures – Beware Of Bias

Last Updated: 4 April 2016
Article by Joanelle O’Cleirigh and Roberta Guiry
Most Read Contributor in Ireland, August 2019

This is the third in our series of Good Decision-Making Guides for Public Bodies. These Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.


Decisions must be made in a way that is procedurally fair. The right to fair procedures derives from the Constitution and the European Convention on Human Rights and has been elaborated on by the courts through case-law.

Decision-makers must apply fair procedures from the very outset of the decision-making process.

Public bodies, and those working in them, have a positive obligation to apply fair procedures.

A failure to apply fair procedures when making a decision may result in the decision being set aside by the courts.


Fair procedures is a flexible concept and what it requires may vary from case to case. For example, fair procedures must be very strictly applied where the decision threatens the good name of an individual or an individual's right to earn a livelihood.

In general, decision-makers must:

  1. not be biased and must not take part in more than one stage of the decision-making process.
  2. notify the person affected by the decision of any allegations against them and give them the opportunity to be heard.
  3. allow him/her to call witnesses, make representations and cross-examine the other side (in cases where there is an oral hearing).
  4. consider allowing him/her to have legal representation.
  5. give reasons for their decision and keep a written record of these reasons.

 We will look at the first of these obligations in this Guide and 2-5 in Guide 4.


Fair procedures must be applied at every stage of the decision-making process, for example, when:

  • conducting disciplinary hearings;
  • carrying out investigations;
  • writing reports;
  • making determinations or decisions; and
  • reaching conclusions.


The decision-making process must be free from bias or the appearance of bias and the decision-maker must be seen to act in a fair and impartial manner.

Even a perception of bias (objective bias) may be sufficient to amount to a breach of fair procedures. A perception of bias arises where a reasonable person reasonably believes, on the basis of the facts as presented, that the decision-maker may have been biased.

Consider whether any perception of bias might arise

If you are asked to sit on a decision-making panel, you should consider if there are any facts that might raise a doubt as to your impartiality. This might include, for example:

  • any association, connection or prior involvement with a particular matter or individual;
  • membership of an organisation;
  • personal or political beliefs; or
  • a financial interest in the outcome of the decision.

If necessary, consider removing yourself from the decision-making panel in order to ensure that the process will be free from concerns about bias.

A perception of bias should not be presumed just because of a connection or an association with a person - consider if a reasonable person would have a reasonable apprehension that there is bias.


A nurse, who was the subject of an allegation of professional misconduct, alleged objective bias on the part of the chairperson of the Fitness to Practise Committee. She said that the bias arose because the chairperson worked at the same hospital as the expert witness who gave evidence at the An Bord Altranais (the Nursing Board) Fitness to Practice Inquiry, and in fact was the expert's superior.

Supreme Court: There was no basis for any suspicion that a reasonable person would reasonably believe that the expert would not be able to give independent and impartial evidence (O'Ceallaigh v An Bord Altranais). Our next Guide will address more of the key elements of fair procedures.

Disclose any facts which may give rise to a perception of bias

If you are a decision maker, you should disclose, in writing, to any relevant parties any facts which a reasonable person would believe would give rise to bias.


Four adjudications took place between parties to a construction contract. The adjudicator who was appointed to the first and second dispute was also appointed to the fourth dispute. He did not disclose that the claimants had had two telephone conversations with his office manager following the second dispute.

High Court of England and Wales: The telephone calls should not have been allowed to take place because the adjudicator had acted in the first two disputes and an adjudicator should not have a conversation with one side to the dispute. The telephone calls should have been disclosed when he was appointed to the fourth dispute. A fair minded observer would conclude that the adjudicator had been biased. (Paice & Springall v MJ Harding).

Do not get involved in more than one stage of a decision-making process 

Sometimes, for practical reasons, a person who was previously involved in a particular case and is familiar with the background may be asked to make a decision on a particular issue arising. However, this may give rise to a perception of bias.

Decision-makers should not have previously been involved in the matter on which they are deciding. For example, a member of staff who has made a complaint about an employee should not subsequently sit on any disciplinary panel or be involved in disciplinary proceedings in relation to the employee. Similarly, an appeal of a decision should not be heard by any of the people who made the initial decision.


A person made a complaint of professional misconduct against a veterinary surgeon. This same person then sat on the Veterinary Council which made an order suspending the veterinary surgeon from practising.

High Court: This was a breach of fair procedures. The Court set aside the Council's decision (O' Donoghue v Veterinary Council).


  • Before starting the decision-making process, consider the various steps in the decision-making progress and plan how you will act in a way that is procedurally fair at every stage.
  • Consider whether any circumstances might give rise to bias or a perception of bias. Disclose these in writing to the appropriate body.
  • Do not make a decision on a matter in which you were previously involved.
  • Do not allow a situation to arise where a reasonable person would have a reasonable fear that he would not have a fair and independent hearing of the issues which arose.
  • Maintain a written record of all communications with the parties involved, the facts considered and the reasons for your decision. This record may prove invaluable if your decision, and the process by which you reached that decision, is later challenged.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions