Trinity College manager who pleaded guilty to sexual assault not unfairly sacked from his €120k a year job
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 HR on the way home from court in March 2021.
Leahy’s sacking from his €120,000-a-year job as head of facilities at Trinity College was upheld by the employment tribunal, which rejected his complaint under the Unfair Dismissals Act 1977 in a decision issued this morning.
The tribunal heard that Leahy’s District Court conviction on March 24, 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 – and was followed by a further allegation of sexual harassment against him to the college by a former employee, identified only as Ms X in proceedings.
“The advice was that in pleading guilty it would be viewed well by the courts; it was considered at the lowest end, minor in nature. It would save the person in the case, who was living in America, coming back, and the likelihood was that the Probation Act would be applied,” Leahy said of discussions with the solicitors he instructed for the criminal matter.
He later appealed to Dublin Circuit Criminal Court and was given the benefit of the Probation Act in July 2021. The tribunal heard 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.
“I was shocked and ashamed that this thing had happened and I did, I trusted in the advice I’d been given that it would be dealt with in the way I had been advised,” he said.
Trinity’s HR director Antoinette Cunningham told the tribunal in evidence: “By choosing not to inform [the] college in advance of the hearing Mr Leahy took a chance that the case would be reported. His insistence that he was not obliged to report a criminal charge… [does] not repudiate the fact that he sexually assaulted a woman.”
The disciplinary minutes opened to the tribunal include references made by Leahy to “family issues” and “a very bad relationship with alcohol” at the time of an alleged Christmas party incident in December 2017 and the incident giving rise to his guilty plea to sexual assault.
Ms X, a former employee of the college, had accused Leahy of sexually harassing her at the party at the Trinity Inn on December 14, 2017, by miming a sex act at her from across the room.
Giving evidence in January, the university’s academic secretary Patricia Callaghan, who led the disciplinary procedure following an investigation by employment law expert Mairead McKenna SC, said: “In many ways he [Leahy] gambled. There’s a gamble there if you have that kind of advice.
“I just wasn’t convinced there was genuine understanding, genuine remorse. Mr Leahy had so much opportunity to show that,” she added.
“What evidence had you that it was a serious crime?” counsel for the complainant, Aaron Shearer BL, asked Ms Callaghan in cross-examination.
“That sexual assault is a serious crime? Mr Leahy pleaded guilty to sexual assault…I am supposed to rely on ‘it was on the low end of the scale’?” Ms Callaghan replied.
Counsel for Trinity, Rosemary Mallon BL, put it to Leahy under cross-examination that he had entered a guilty plea to sexual assault under the 1990 legislation in the area, referring to “indecent assault”.
“I don’t know the definition of ‘indecent’,” Leahy said.
“You don’t know what ‘indecent’ means?” counsel said.
A legal discussion followed on the use of the term, with Ms Mallon saying there had been a recent decision of the Supreme Court on the subject.
“Does it say indecency is serious?” Mr Shearer asked, disputing that there was equivalence.
Ms Mallon went on to ask whether a man giving a woman a “pat on the bottom” would be serious.
“I think everything is in context,” Leahy said.
“I’m asking you: an unsolicited, unwanted pat on the bottom,” counsel said.
“You hadn’t mentioned unsolicited,” he said.
Mr Shearer said there had been a “value judgment” by HR staff in the university on the seriousness of his client’s sexual assault conviction at the District Court 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 by the Circuit Court.
Under cross-examination, Trinity’s head of employee relations, Mary Leahy, accepted that certain comments by the complainant’s immediate superiors which were included in the investigation report “probably shouldn’t have been made”.
The complainant’s line manager, Mr Clark, had said Leahy “would probably not get a look in” if he was applying for the job with either a current or spent conviction because of the “sensitivity of the role”.
“Brendan has a criminal conviction for sexual assault. I don't understand how the university could actually have someone with such a criminal conviction on campus dealing with students,” Ms Cunningham, the college’s chief operations manager had stated.
Mr Shearer said they had “predetermined” the disciplinary proceedings against his client, though the employment law barrister hired to investigate, senior counsel Mairead McKenna, said in evidence that she was “keen to understand the approach of the university”.
Mr Shearer added that a delay of three years and four months before investigating the Ms X matter was “inordinate and inexcusable” and that there was a further procedural flaw in the fact it was initiated under the college’s disciplinary policy rather than its dignity and respect policy.
It was accepted this had been an error, but not that the Ms X matter should not have been investigated at all because the allegation had been raised by someone who was no longer an employee.
In his decision, adjudicating officer David James Murphy 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 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 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.
“The complainant decided not to engage…while [this] may have been borne out of some legitimate concerns about the respondent’s HR department having taken a view of him, it was still a mistake,” Mr Murphy wrote.
“He was a senior management figure in a high-profile and publicly-funded organisation which educates thousands of young adults. He was entirely aware of that context, and yet he still chose not to engage."
He ruled Leahy “was not unfairly dismissed”.