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Philip Nolan v Science Foundation Ireland: The dispute that has rocked Ireland’s science community

Case likely to hinge on issue of whether fair procedures were applied when board of science funding body summarily dismissed director general

Prof Philip Nolan 'lost the dressingroom, plain and simple', SFI’s counsel claimed in court. Photograph: Sam Boal/RollingNews.ie

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Kevin O'Sullivan
Sat Jun 15 2024 - 06:00

The tide turned against Science Foundation Ireland (SFI) chief Philip Nolan this week.

A series of responding affidavits from his employer detailed forensically the circumstances of growing turmoil within the State agency, which it claims began weeks after his appointment in January 2022.

The turn of events before the High Court during a four-hour hearing was the inevitable consequence of Nolan’s astonishing account presented on May 30th in the absence of SFI.

The dramatic legal showdown marked the culmination of a frenetic period of back-room machinations concerning Nolan and his management of a key State agency, the publicly funded body responsible for funding research in science, technology, engineering and maths in the country.

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Nolan outlined – as he saw it – how the SFI board and senior managers had shown “profound resistance to change” and attempted to orchestrate his departure after he was appointed by then Minister for Further and Higher Education, Research, Innovation and Science Simon Harris as “CEO designate” of a new body – Research Ireland – merging SFI and the Irish Research Council (IRC) with a €300 million annual budget.

Nolan is challenging his dismissal without notice as SFI director general, and rejects all findings against him in relation to inappropriate behaviour in his dealings with its executive management team, following five protected disclosures made against him by senior staff in December 2023.

Independent investigator Tom Mallon SC found he had not breached corporate governance or engaged in bullying but had displayed “inappropriate behaviour” towards senior managers concerned, which was at the “upper level” in respect of two of them. A protected disclosures group, made up of three board members, agreed with the findings – as did the full board.

The SFI response dominated Tuesday’s hearing and was led by an equally remarkable account by its chairman Prof Peter Clinch. He said there was “no orchestrated effort to exit him”. The board did not want to deprive him of the position of chief executive of Research Ireland or to undermine the Government decision to amalgamate SFI and IRC.

He added: “These extraordinary allegations and conspiracy theories completely ignore the fact that the situation in SFI was utterly unsustainable and that it was not and is not feasible for the plaintiff [Nolan] to remain in the role in the circumstances.

“Part of the role of a CEO or equivalent is to take responsibility for the ultimate success or failure of an organisation and to ‘bring people with’ him. His failure to do that put the operational efficiency of SFI into serious and immediate peril.”

SFI’s counsel Mark Connaughton SC bluntly summed it up in court: “He lost the dressingroom, plain and simple. That is a judgment call the board is entitled to make.” The decision was in the best interests of SFI and the board was entitled do so; it was not a matter of misconduct.

In a 33-page response to Nolan’s allegations, Clinch outlines how he believed SFI became increasingly unable to perform its statutory functions; a problem compounded by senior staff being out on sick leave (including the director general) – due to stress in some cases – together with cancelled meetings and an exceptional number of board meetings due to the unfolding crisis, which required putting in place an independent observer to sit in on executive committee meetings.

In November 2023, “relationships at SFI appeared to worsen dramatically” when he and two board members were approached by executive committee members about how they were treated by Nolan.

[ Philip Nolan: SFI was in ‘serious and immediate peril’ due to managerial breach, High Court hears ]

[ Prof Philip Nolan dismissal: Minister for Innovation intervened in dispute between SFI and director general ]

“The allegations ... included that, if the plaintiff was challenged on his proposed course of action, he would become aggressive and then sideline the person concerned or state a threat of some kind, including regarding the position of the person’s job in Research Ireland,” said the SFI chair

Clinch highlights Nolan’s ignoring of “significant adverse findings against him within the investigation report, albeit that the board ... concluded that it was ultimately not in the best interests of SFI to proceed to disciplinary action”.

He outlined 31 examples of dysfunction under Nolan’s leadership where “the situation was dire prior to the completion of the investigation but became substantially worse”.

Those who made protected disclosures had stated that “they do not see why they should be made to work with someone against whom findings of fact of this nature by an independent investigator had been made”.

The SFI chairman added: “It has become increasingly hard for the board to insist that they do so, having regard to the board’s duty of care to all staff.”

Examples included trust being “a major issue” and an absence of one-to-one meetings between Nolan and senior managers “leading to a breakdown in effective management of SFI”. The committee “does not meet unless the plaintiff is absent or there is an independent observer as a protective measure, demonstrating the ineffective operation of that committee”.

Clinch said staff members cried in his presence while discussing their concerns.

“Good governance has been eroded due to the lack of engagement of the appropriate expertise and so the board feel it is unable to rely on the information coming to it,” he submitted.

Disputes between Nolan and other executive committee members resulted in delays in progressing multimillion-euro programmes.

It is clear two incidents antagonised relations. The first was during Nolan’s first month in the role, as Clinch observed he “struggled with his emotions when challenged or when he did not get his way”.

It arose when the board did not agree to his request to become chairman of St James’s Hospital, Dublin. He wrote a letter “in an entirely inappropriate way” which showed “a lack of respect for the board and for SFI’s governance structures”.

The board admonished the director general who ultimately apologised but within weeks accepted a position on a new Covid advisory committee which the board discovered through the media. Subsequently, a performance improvement plan was agreed between the plaintiff and a nominated line manager, Clinch confirmed.

[ Issue of Philip Nolan’s reputation amid SFI dispute ‘at very highest level of seriousness’ ]

[ What next in the Philip Nolan saga? ]

“The board was not uncomfortable with the plaintiff’s past performance on Nphet [the team that advised the Government and the public on Covid-19] but it needed his full attention on [a] job for which he was paid over €200,000 per annum,” SFI chair said.

The second arose on May 20th when Nolan sent an email to all staff within minutes of returning to work following sick leave “in which he asserted there was no findings against him”.

This is a view which he still holds, as Clinch noted he “seems to be a stranger to the extent to which his relationship with the executive committee has broken down”.

In a letter to the board on April 26th, the new Minister Patrick O’Donovan, through secretary general Colm O’Reardon, responded to investigation findings, and suggested mediation. While the department was advised by the Attorney General the Minister had no role in an internal disciplinary matter for SFI, he highlighted “matters of concern for the Minister as they relate to the designation of the first CEO of Taighde Éireann”.

“In light of this it would be in the best interest of the new agency that any ongoing process would be resolved in a timely manner,” he added.

The board responded on May 15th, curtly expressing surprise at the Minister’s reference of an “ongoing disciplinary process” when no process had begun. The board was struggling in endeavouring to fulfil its statutory obligations and its duty of care to the staff of SFI.

“Given the gravity of the situation, we request the opportunity to meet with you at your earliest convenience,” Clinch wrote.

The board concluded mediation – a voluntary process – was not feasible or acceptable to those who made protected disclosures. Nolan was dismissed summarily on May 27th.

Counsel for SFI told Mr Justice Rory Mulcahy that it was “absolutely legally entitled” to say it was not proceeding down the path of a disciplinary process, which had been recommended by the investigator, if it would be too harmful to the organisation.

Padraic Lyons SC, for Nolan, countered that such was the egregious damage to his client’s reputation, fair procedures had to be applied.

It is likely that the case will hinge on this issue.

As the SFI chairman has noted, “the plaintiff remains CEO designate for as long as the Minister wishes him to be”.

O’Donovan has declined to confirm if Nolan is still heading up the merger in such a role.

Given how far apart the sides are in this dispute, an agreed outcome, rather than one imposed by the court, would likely require one of the parties to lose face.

This possibility seems remote given the level of entrenchment and mistrust between each side in a controversy exacerbated by leaking of details of the findings of a protected disclosure process.

While the plaintiff says he has suffered immense reputational harm due to information being leaked about the investigation, SFI cannot be held legally responsible for the fact these “horrible events occurred”, its counsel contended.

An interim order preventing his dismissal was extended. A decision on whether that remains in place and if the case goes to full hearing is due next week.

In the meantime a highly damaging stand-off for all concerned continues, between a major State agency attempting to reflect a modern Ireland at the cutting edge of global research and a leading academic with an unblemished career of 20 years at the highest level of third-level education.

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