Ireland: Kerins Decision: A Cautionary Tale For Employers

Last Updated: 7 May 2019
Article by Louise O'Byrne, Hannah O’Farrell and Niamh Fennelly
Most Read Contributor in Ireland, July 2019


The High Court rejected Ms Kerins' challenge to her treatment before the PAC hearings during the course of its examination of State funding to the Rehab Group in 2014. She appealed the ruling to the Supreme Court. Ms Kerins voluntarily attended the first hearing in February 2014 and alleged that the treatment of her at that hearing resulted in shock, stress and anxiety requiring hospitalization, and an attempt to take her own life.

The PAC denied her claims and argued that it was entitled to scrutinise how public monies are spent, given that Rehab companies were in receipt of approximately €83 million of public monies annually, and that Ms Kerins had received a €240,000 salary. The High Court had said that, due to the separation of powers, the courts could not intervene in how hearings were conducted before the PAC.


On appeal, Mr Justice Clarke, Chief Justice of the Supreme Court, said that a combination of factors led to its finding that it was appropriate for the Court to intervene in this case, namely that:

  1. the PAC had acted "very significantly" outside its terms of reference;
  2. the Committee on Procedure and Privileges (CPP) of the Houses of the Oireachtas had found that the PAC had acted ultra vires and refused to grant compellability powers to the PAC in respect of Ms Kerins' attendance before PAC;
  3. there was the possibility that the PAC had engaged in an unlawful and unfair process by acting in a manner significantly different from the basis on which it had invited Ms Kerins to attend before it; and
  4. the Oireachtas had taken no action to deal with these matters.

The Court found that it would be necessary to have a further hearing before the Court of Appeal to decide on related matters. At the time of writing, a decision is awaited relating to the identity of the appropriate defendant, after a finding in the High Court that it was not appropriate, for constitutional reasons, to name the individual members of a committee as defendants; and, secondly, whether it is appropriate to characterise the actions of the PAC "as a whole" as being a "significant and material" breach of the basis on which Ms Kerins was initially invited to appear before it.


The Court said that there was no "absolute barrier" to the bringing of proceedings concerning the actions of a committee of the Houses of the Oireachtas. However, it stressed that proceedings could not be properly brought, if to do so would breach the privileges and immunities, conferred by Article 15 of the Constitution, on utterances of members of the Oireachtas, or otherwise amount to an inappropriate breach of the separation of powers.

In the circumstances of this case, the Court was satisfied that it would not be a breach of the separation of powers to declare the actions of the PAC unlawful in light of the fact it had acted "significantly" outside the terms of reference, a view that the CPP had also reached. The Court said that it is for the Houses of the Oireachtas to confer appropriate functions on its committees but that it is "important" that a committee does not exceed its remit without prior authorisation to carry out the extended remit. The Court went even further, stating "the Committee is not legally entitled to an answer to any question which is not relevant to the proceedings and which is not within its terms of reference".

When the PAC wrote to Ms Kerins, the letter stated that the PAC was inviting her to appear for the examination of:-

"Payments made by the HSE to Rehab under section 39 of the Health Act, 2004.

The operation of the Charitable Lotteries Scheme and payments made to Rehab from the Vote of the Department of Justice and Equality.

Payments made by Solas to Rehab for the provision of Specialist Vocational Training."

The High Court held that the PAC acted outside these terms of reference in discussing Ms Kerins pay, modes of transport, the company in which her family members were involved etc.


The Supreme Court's condemnation of the PAC's competence creep is a cautionary tale for employers when agreeing and abiding by terms of reference in disciplinary investigations. The judgment makes clear that an employee, who is the subject of an investigation, may legitimately refuse to answer questions which fall outside the terms of reference. Even where an employee answers such questions, a fundamental breach of fair procedures may exist which could prove detrimental to the entire process.

We recommend that employers:

(a) Draft terms of reference that accurately reflect the proposed scope of the investigation

(b) Agree the terms of reference for the investigation with the employee who is the subject of the disciplinary investigation.

(c) Abide by the terms of reference that are set or agree any changes with the employee in advance. The terms of reference for an investigation are the roadmap that the employer sets for itself in conducting investigations and disciplinary process. Once the terms of reference are agreed, employers should act within these parameters, as failing to do so may be of itself a breach of fair procedures and may ultimately jeopardize the process. The terms of reference represent the benchmark against which the actions of an employer will ultimately be judged. A critical consideration for employers is appropriately handling additional matters, which could form the basis for allegations not contemplated at the outset of the process, should a process or indeed an outcome flowing from that process be 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
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