A senior Trinity College manager sacked after pleading guilty to sexual assault has been told by the Workplace Relations Commission that the Probation Act does not include any sort of employment protection.
Brendan Leahy had taken a “gamble” on legal advice that he would get the Probation Act when he pleaded guilty, and made no mention to his employer that he had been charged with sexual assault until he phoned its head of human resources on the way home from court in March 2021.
His sacking from his €120,000-a-year job as head of facilities at Trinity College Dublin was upheld by the employment tribunal, which rejected his complaint under the Unfair Dismissals Act 1977 in a decision published on Tuesday.
The tribunal heard that Mr Leahy’s District Court conviction on March 24th, 2021, which left him with a three-month suspended prison sentence and a €1,000 fine, was widely reported in the national media the same day.
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“The advice was that in pleading guilty [to the sexual assault charge] it would be viewed well by the courts; it was considered at the lowest end, minor in nature,” Mr Leahy said of discussions with the solicitors he instructed for the criminal matter.
Mr Leahy later appealed to Dublin Circuit Criminal Court and got the Probation Act in July 2021. The tribunal heard Mr Leahy wrote to the college’s HR department in early August 2021 stating that the Circuit Court order meant his conviction had been “disposed of” – but the college pressed ahead with its investigation.
However, a further allegation against Mr Leahy was made to the college by a former employee identified only as Ms X, who accused him of sexually harassing her at a Christmas party in December 2017 by miming a sex act at her from across the room.
Disciplinary minutes opened to the tribunal include references made by Mr Leahy to “family issues” and “a very bad relationship with alcohol” at the time of the alleged Christmas party incident in December 2017 and the incident giving rise to his guilty plea to sexual assault.
Giving evidence in January, the university’s disciplinary officer, academic secretary Patricia Callaghan, said: “In many ways he [Mr Leahy] gambled. There’s a gamble there if you have that kind of advice.”
Counsel for the complainant, Aaron Shearer BL, said there had been a “value judgment” by HR staff in the university on the seriousness of his client’s conviction and that the Circuit Court had considered the matter to be “trivial”.
His client’s position was that the investigation into the sexual assault conviction ought to have been stopped when the Probation Act was applied.
Mr Shearer also said that comments included in the investigation report from Mr Leahy’s superiors had “predetermined” the disciplinary proceedings – adding that a delay of three years and four months before investigating the Ms X matter was “inordinate and inexcusable”.
In his decision, adjudicating officer David James Murphy indicated he had seen “flaws in the process” but that he was satisfied they “did not result in any actual unfairness to the complainant”.
He wrote that if he was to agree with Mr Leahy’s position that Trinity was legally obliged to “ignore his guilty plea” after the Probation Act was applied, the legislation would “need to expressly provide the offender with additional employment related protections”.
“It does not,” he wrote.
He wrote that if Mr Leahy had wanted to convince Trinity College that the sexual assault was minor enough that it didn’t justify his sacking, then “it was for him to provide the circumstances and relevant details” to the investigation and disciplinary process and that it was a “mistake” for him “not to engage”.
Mr Murphy wrote that Trinity College was entitled to consider this sequence of events to be “serious misconduct” – adding that the disciplinary officer was also entitled to uphold a finding of sexual harassment in the Ms X matter.
He ruled Mr Leahy “was not unfairly dismissed”.
