HORSE Sport Ireland (HSI) has released the findings of Justice Frank Clarke into eventing high performance director Sally Corscadden’s use of metal bar training techniques.
Clarke was engaged by HSI to investigate whether or not a metal bar training practice adopted by, or at least under the control of, Ms Sally Corscadden, in her capacity as eventing High Performance director, amounted to a breach of the rules of the FEI and as such gave rise to a breach of Ms Corscadden’s contract of employment with HSI.
Clarke sets out in a Substantive Report his conclusions in relation to those central allegations of rapping. In addition, the Substantive Report sets out his conclusions in relation to a further allegation which related to whether or not there was any misconduct on the part of Ms Corscadden in connection with having made no mention, during an earlier investigation conducted by Susan Ahern BL, of the fact that the metal bar training practice was in use.
That previous investigation was concerned with a training practice, which Clarke referred to as the “attached aluminium plank” training method. For completeness, Ms Ahern found following her investigation that the attached aluminium plank training practice, based on the evidence of how it was slanted away from the direction of the horse approaching the fence, did not amount to rapping.
Conclusions of the Substantive Report of Mr Justice Clarke, dated 10th July 2023 found as follows in relation to the central allegation of rapping:
The “central substantive finding” of the investigation was “not truly to the effect that the metal bar training technique did not amount to rapping but rather that it was insufficiently clear that it did amount to rapping to justify a finding of a breach by Ms Corscadden of her contractual obligations to HSI.”The “precise reasoning” for this was that “the definition of rapping is, for understandable reasons, expressed in general terms but with some specific non exhaustive examples given. The conclusion reached was that the metal bar training technique was not even closely connected with the specific examples given in the rules. Nor was the metal bar training method found to represent a reasonably clear variation on the specific methods identified so as to justify concluding that the general words were intended to cover a training method such as it. Having regard to the finding that a breach of the rules could only be held to exist where there was not significant doubt as to whether the rule applied to the activity concerned, it followed that it could not be said that Ms Corscadden sanctioned a breach of the rapping rule in the course of training taking place under her control.”“It was not sufficiently clear that the practice was rapping to justify a finding of breach of contract.”“It is important to emphasise that the Substantive Report concluded that the evidence that the practice would cause unnecessary pain or discomfort to a horse was inconclusive.”The Substantive Report found as follows in relation to the additional allegation:
“…. Ms Corscadden was in breach of her contract of employment by not drawing the attention of HSI to the fact that the metal bar training practice was also in use, when an investigation into not entirely dissimilar training methods was in train.” Mr Justice Clarke considered “that to have been a breach of her obligation of trust and confidence.” He said that “the breach concerned was not at the most serious end of the type of breaches which might come within the scope of a failure to respect trust and confidence.”….“failing to mention that there was another not dissimilar training practice employed was… a breach of the obligation of confidence and trust most particularly having regard to the highly responsible nature of Ms Corscadden’s position and the potential for reputational damage to HSI in all the circumstances of the case.” She “was in breach of her contract of employment by failing to draw attention to the fact that the training practice… was ongoing at the same time as the practices that were investigated by Ms Ahern so that these practices could also be assessed at that same time.” Ms Corscadden “breached her obligation of trust and confidence and in doing so an allegation of breach of contract was upheld.”This was not “at the upper end of the range of breaches of the obligation of trust and confidence.”In summary, in setting out his conclusions in the Substantive Report, Mr Justice Clarke set out the following: “I am not of the view that Ms Corscadden can be held to have been in breach of her contract of employment with HSI by reason of permitting breaches of FEI rules to take place during training over which she had general control. I am, however, of the view that Ms Corscadden was in breach of her contract of employment by not drawing the attention of HSI to the fact that the metal bar training practice was also in use, when an investigation into not entirely dissimilar training methods was in train. I consider that to have been a breach of her obligation of trust and confidence.
“While I have not been persuaded as to the merits of that case, it does seem to me that it was an allegation which required to be investigated and for which there was a credible basis. HSI would have been open, potentially, to legitimate criticism if it simply ignored the matter.”
Conclusions of the Supplementary Report
It was recommended that “the appropriate sanction to be imposed would be a written final warning to the effect that any further material breach of the duty of trust and confidence could well result in dismissal.”
The reasons for that recommendation were as follows:
Conduct which damages trust and confidence will “necessarily always be serious but… there may be conduct which damages confidence in a manner which falls short of justifying dismissal even though always serious.”“The sanction must be proportionate to the conduct which amounts to a breach of an employee’s contract of employment while it is also necessary to take into account any aggravating or mitigating factors before reaching a final decision on the appropriate sanction.”Mr Justice Clarke took “into account the fact that Ms Corscadden’s previous record does not suggest any adverse disciplinary findings.” This was “a factor to be taken into account in an overall assessment of all of the relevant circumstances for the purposes of determining a proportionate sanction.” “Taking all factors into account, [Mr Justice Clarke] was not satisfied that dismissal would be a proportionate sanction to apply in all the circumstances of this case.” He was of “the view that it is more than possible to envisage more serious breaches of the duty of trust and confidence which would justify dismissal”. It did not seem to him that “this case falls into a category where the breach is so serious that it would justify dismissal in respect of a person who did not previously have any adverse disciplinary record.” “All breaches of the duty of trust and confidence are necessarily serious matters and are particularly serious in the case of a senior and trusted employee, holding a most responsible role, such as Ms Corscadden. There can be no doubt that trust and confidence in this case has been impaired but in my view not necessarily beyond repair. However, any further action on the part of Ms Corscadden which might legitimately (and the test in this regard would again obviously be objective) lead to a further impairment of trust and confidence would make it almost certain that trust and confidence could not then be restored. In the circumstances it would be my recommendation that the appropriate sanction to be imposed would be a written final warning to the effect that any further material breach of the duty of trust and confidence could well result in dismissal.”Statement
Ms Corscadden released a statement to The Irish Field, commenting: “I welcome the finding of Judge Clarke’s investigation which clear me of the allegations of allowing rapping at High Performance training. I passionately believe that you need a happy and confident horse to be able to perform to the best of its ability and all the management team and coaches share this same belief. I don’t ever condone the practice of rapping. This has been a very traumatic and stressful time and I am delighted the investigation has been completed.”