ESB employee has right to silence over cash questions

Judge rules in favour of man accused of asking builders for money

THE High Court has ruled that an ESB employee has the right to refuse to answer questions about claims he asked developers to pay €50 cash to network technicians to install electricity meters.

However, Judge Rory Mulcahy said that this right was only ‘for the time being’.

He s ai d Kieran Sharkey’s entitlement to silence in the face of the ESB’s questions will cease as soon as a criminal investigation into the matter is at an end.

It will also end if the ESB can prove that those questions must be answered while the investigation is going on, by weighing up Mr Sharkey’s right to silence against its own need for answers.

Mr Sharkey’s lawyers have argued that he is entitled to keep silent, to avoid the prospect of self- i ncrimination i n the Garda investigation.

Giving the background to the case, Judge Mulcahy said that the ESB had written to Mr Sharkey, with an address in Finglas, Dublin, asking him to provide answers to questions about allegations made by a developer.

He said: ‘The defendant denied wrongdoing, but otherwise refused to answer any questions, invoking his right to silence.’

The ESB went to the High Court seeking a declaration that Mr Sharkey had, by refusing to answer the questions, breached his contract of employment – meaning that he could be fired. Alternatively, it sought an order compelling Mr Sharkey to disclose certain information to it.

The judge noted that Brian Tapley, ESB custom and project delivery manager, said Mr Sharkey had started work as a network technician with the company in 2017.

In May 2022, Mr Tapley said the ESB became aware of allegations from two developers – Richmond

Homes Ltd and Arkmount Construction Ltd – that certain ESB employees were demanding cash payments for expediting the completion of works to be carried out by ESB.

Mr Tapley said a representative of Richmond told him in February 2022 that he had requested that electricity meters be installed in a new development in Malahide. He said he was advised to contact the relevant network technician, and therefore contacted Mr Sharkey.

He said Mr Sharkey advised him that he should pay €50 per meter to the network technicians who would install the meters. He said he did this on two occasions.

It was not alleged that Mr Sharkey had r e c e i v e d any payments, the judge said.

However, it was alleged he had tiling carried out at his home, by a tradesman sourced through Richmond, at below market price.

The ESB reported the allegations to gardaí, who searched Mr Sharkey’s home in July 2022, seizing two mobile phones. Mr Sharkey was told he was suspected of bribery and corruption in his work for ESB, the judge said.

The ESB then wrote to Mr Sharkey, asking him to confirm whether he had ever received any payment or gift from Richmond or Arkmount, or anyone else. It was this letter he refused to answer, citing legal advice.

Judge Mulcahy said i t was premature for the ESB to treat Mr Sharkey’s contract as being broken simply because he had refused to answer its questions. He said Mr Sharkey had confirmed he would answer once the investigation was complete, or face the consequences of his refusal.

If the ESB wanted answers before then, the judge said it would have to carry out a balancing exercise concerning the competing rights of the two sides, which could be reviewed by a court. He said he would make final orders in the case on March 1.

‘Refused to answer any questions’