In our August instalment of Employment Law at 11, Legal Island’s Christine Quinn and Seamus McGranaghan of O’Reilly Stewart Solicitors discuss what employers can (and can't) do when theft or dishonesty allegations arise.

They cover:

The legal threshold for dismissal
Handling disciplinary and criminal investigations at the same time
What happens after dismissal

Transcript to Follow:

Christine: A warm welcome to Employment Law at 11, sponsored by HRLocker. My name is Christine Quinn. I'm from Legal-Island, and as always, I'm chatting to Seamus McGranaghan. He's a director at O'Reilly Stewart Solicitors.

So, what's the topic today? We're looking at something that most HR professionals will have faced at some point: theft, fraud, and dishonesty in the workplace. While these situations can raise strong emotions and difficult challenges, they also require employers to navigate a fair and legally robust process. So that's what we're going to be looking at today.

Please feel free, as always, to submit your questions at any time using the Q&A feature, and I will make sure to put them to Seamus as and when appropriate.

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As always, we're going to kick off with a few polls to see where you are at with this particular topic. So, the first one, "In the past 12 months, how often has your organisation dealt with allegations of theft, fraud, or dishonesty?"

I genuinely don't know what's going to come out here. I was thinking maybe everybody is so honest in Northern Ireland that this never happens. Let's see what you're saying. I can see the numbers going up and down there. Oh, we've got a dead heat really between "not at all" at 41% and "once or twice" at 41%.

Seamus, would that reflect your experience in work, that you're not getting too many of these but enough?

Seamus: Well, I suppose if we add the "once or twice" at the 41% and "three times or more" at the 18%, it's taking us largely over the 50%. So that would sort of mirror where you would see things happen, I suppose, even just from an onwards tribunal perspective.

I think that the usual case that we think about for an employment tribunal is an unfair dismissal case. I know that we've had a significant rise in discrimination cases, and certainly a lot of traffic coming through our lines in work here will always be around discrimination issues and things like that.

But the real butt of the cases, and I suppose even from the tribunal's aspect, they tend to divide the cases out between those sort of simplistic unfair dismissal cases, not that they ever are simplistic, and then the more complex cases of the discrimination aspects.

And there used to be a different format as to how the tribunal would deal with it. There still is a little bit of a different format, but that's how they would view them, sort of the straightforward unfair dismissal cases.

And when you're talking about things around theft, fraud, dishonesty, it is the higher end of the misconduct balance of things. So that tends to be where you find . . . those tribunal cases will sit for unfair dismissal within that theft, fraud, dishonesty, the heavier end of the gross misconduct.

It is interesting, and that's where a lot of the problems arise. And I think just with the way things are now, everything in the workplace is so much tighter around whether you have a good case management system or you have management tools that help you identify theft.

And the social media aspect around dishonesty and problems that arise, I think there's just much more of a focus now on those sorts of matters as well. I don't think you can get away with as much as you might have been able to get away even 10 years ago, just with how the technology is used. So we certainly see these cases coming to the forefront.

Christine:    Brilliant. Thanks, Seamus.

Let's have a look at the second poll when you're ready there, Gosia. "What do you find most challenging when dealing with allegations of workplace dishonesty?" Is it establishing the facts and the evidence, is it managing the disciplinary process fairly, or is it deciding on the appropriate sanction?

If you could have a vote there, we'll see where you're sitting. That'll help guide us in how we take today forward as well, just from what we discuss.

I can see everyone voting. It's going up and down there. Let's have a look at how people have fallen. So 55% are saying establishing the facts and evidence is problematic, just 5% there saying managing the disciplinary process fairly is giving them headaches, and deciding on the appropriate sanction is 41%.

I mean, sometimes you think you've got someone bang to rights, don't you, and then the evidence doesn't stack up, or you've got one director saying, "Sack them, we don't want those people around", and other people saying, "Now, hold on. They've worked for us for 20 years. Let's try and balance this out". So, I suppose those results aren't really that surprising, are they, Seamus?

Seamus: No, and I suppose it's encouraging there to see that there's a very low percentage that are struggling with the actual process itself. We have a good, competent crowd of HR professionals with us this morning, which is great.

Ultimately, there's a much sort of even divide between . . . These specific types of investigations in the workplace are always difficult, and it's encouraging then as well that there is a good level that are giving consideration to the outcome and struggling with that.

That's always the fear, that someone will say, "Well, look, that's it, and this is a sackable offence". And that's a really hard job, whether you're in HR or legal sometimes, to say to the client, "Actually, you're not across the line on that, and you need to give consideration to the other matters or alternative outcomes in respect of the disciplinary".

And it's a hard job to do that if you're faced with a very strong director or owner of the business that you work for that is adamant, yet you know in a year or 18 months down the line when you're at a tribunal that you're going to have to then remind them of your advices that you gave back at that time. So not an easy job, but I think that's fairly reflective and encouraging.

Christine: Brilliant. And then just a final poll there when you're ready, Gosia. So here it is. "Have you ever had a situation where you strongly suspected dishonesty but felt there wasn't enough evidence to proceed?"

Certainly, when I was working with smaller businesses back in my day in private practice, this occurred a lot, people thinking, "Something just doesn't feel right about this".

Let's see how people are voting. Let's have a look. So "yes, frequently" is coming out at 7%."Yes, occasionally" is the big winner there, I would say, at 76%, with 17% saying no.

Again, Seamus, as I was saying, I don't think that's surprising. I think it's quite a common thing. You just get the vibe that something's not quite right, but you can't quite pull together anything concrete.

Seamus: It can be very difficult. Certainly, what I would see coming across my desk is that a business owner or a director or someone in HR . . . and it tends not to be so much in HR, but it tends to be more the direct client . . . will say, "This is unequivocal. It's clear". And then whenever I look into and review the evidence, I find myself not so sure.

I suppose your mind does turn to, "How will a tribunal panel view this?" And I suppose it's an important part of the discussion around dealing with these matters. The tribunal often aren't concerned about whether someone did or didn't do something. They're testing the process and the procedure to ensure that there was a fair process applied.

And so sometimes getting caught up in that aspect of did they or didn't they, yes, it's important, but it's also to ensure that you're looking at the matter in the round.

I don't think you can just focus in and say, "Well, there's CCTV of them putting something in their pocket. I've got them. They're done. Out the door they go". It's just not as clear-cut as that, and you do need to make sure that there is a proper investigation.

I know that we'll get to talking about our good old Burchell Test, but that's just an example of where things can be misconceived through CCTV. And then you get into a meeting and the employee has an outstanding response to the allegation that floors you, and you think, "God, I never thought of that, actually". So that's the whole purpose of the investigation and keeping your mind open during that investigation as well, which is hard to do.

Christine: Yeah. Brilliant. Thanks very much for that, Seamus. And thanks to everyone for joining in with the voting there.

So yes, Seamus, let's get started, shall we? I mean, I think it's easy to say, "Well, you just follow the process. You just follow your normal disciplinary process", but there is stuff coming in from the side-line on these types of dishonesty cases that throws your lovely plans off quite often. So what do you think? Take us through what your thoughts are on that.

Seamus: Well, I think the starting point for any disciplinary process has to be that you need to have an awareness that there is a statutory process in place in Northern Ireland for dealing with disciplinary matters. Failure to follow that statutory procedure will more than likely, in most cases, result in any termination arising as a result of the disciplinary being automatically unfair. I'll get into that in a second. So that's our risk.

How do we manage that risk? Back to the drawing board. As always, we say you need to have a policy and procedure in place as to how you deal with your disciplinary.

It's a fundamental part of the contract of employment, that there will be reference within the contract to say, "This is how we deal with disciplinary and grievance matters".

And often, you'll see them sometimes just appended to the contract, or alternatively there'll be a staff handbook or there'll be a standalone policy to deal with disciplinary matters.

Similar to you, Christine, dealing with small businesses, sometimes the paperwork is not great around policies and procedures. Your fallback position should always be if there isn't a written policy and procedure, or if the policy and procedure isn't specifically detailed in relation to how to deal with these matters, my advice to clients is always that you fall back to the Labour Relations Agency's Code of Practice in relation to disciplinary and grievance.

It's a blue-coloured . . . it used to be a maroon-coloured booklet. It's a blue-coloured booklet. A copy of it sits on the side of my desk, and often . . . I mean, twice this week, I reverted to it just to go back and review and remind myself of things and just double-checking.

The Code of Practice for Disciplinary and Grievance holds weight with the tribunal. It is the minimum in terms of expectation that the tribunal expect you to follow.

It looks like a big, chunky, difficult document, and it is not. It deals with disciplinary and grievance, and it takes you through your process, and there's really good guidance in it around what qualifies example-wise.

You can't all the time fit everything into a box, and specifically with these weird and wonderful cases that you get through, you can't put them into the box, but generally, it'll break down minor misconduct, major misconduct, gross misconduct, and it'll take you through the steps in relation to all of that.

And prior times where clients of mine don't have a written policy and procedure in place, I will take the LRA Code of Practice and provide that with the disciplinary letter or the invite letter or the investigatory letter and say, "we don't have a policy in place, and this is what we're adopting instead to go through the process".

I suppose that when we're talking about fraud, theft, dishonesty, I mentioned earlier on we are dealing with the heavy end of misconduct. You'll have general or ordinary misconduct. You'll have serious misconduct, which could be violation of ethical standards which could cause risk or harm to an employer. And then you have gross misconduct, which are fundamental issues that potentially could destroy the trust and confidence relationship between the employer and employee.

Also, in terms of the outworkings of that process, you could look at a termination with notice. Sometimes people will say, "You're getting a final written warning and a demotion", in a way to avoid the termination. And then of course, there's the good old summary dismissal where you're dismissed without notice.

And in any tribunal case that I have ever done, I think around cases involving summary dismissal, a tribunal will want to hear from the decision-maker as to why they arrived at that decision, and why they felt that they had no alternative but to arrive at a decision of summary dismissal.

Typically, you'll hear a panel or an employment judge ask, "Well, why did you not dismiss with notice rather than doing a summary dismissal?" So, obviously, a summary dismissal is with no notice, no payment in lieu of notice. You get the decision, and your termination ends on that day. Irrelevant of whether a [inaudible 00:14:42] goes in or not. That's the termination date in respect of that.

For gross misconduct, you are looking at the heavier end: theft, physical violence, fraud, serious health and safety violations where you're putting other people at risk, lives at risk, or health and safety.

And just a mention, because we talked about the Labour Relations Agency Code of Practice, we're talking here around the standard disciplinary process, the standard disciplinary procedure. There are annexes at the back of the Code of Practice that take you through the steps that are required, the bare minimum that are required for going through a standard disciplinary process.

There is reference to a modified disciplinary procedure, and that's where you dismiss instantaneously without any investigation, without any disciplinary meeting, that you see something happening there and then and you say, "Done. You're dismissed".

So, it's the TV dismissal that you see when you're . . .

Christine: "You're fired".

Seamus: "You're sacked. Out you go. Get out the door". There must be a very cautious approach to adopting the modified disciplinary procedure. In general, we have the three-step procedure under the standard disciplinary procedure.

And just as a reminder, I fully expect that everybody will be aware of this, but the three steps under the statutory procedure are that you have to put the allegations in writing to the employee, so a written statement setting out the allegations of misconduct and the grounds for taking the disciplinary action.

Inviting the employee to the meeting. Second is that you have to hold the disciplinary meeting with the employee. There are lots of small bits contained within this. You have to make sure that they get an opportunity to make all of their representations, that there's a right of accompaniment, and all of the box-ticking exercises.

And the last part of number two is that you issue your outcome in writing to the employee, and you're detailing . . . You're not just writing and saying, "I've decided that I'm terminating your employment summarily. Here's your P45". You need to set out the reasons, and that's also within the 1996 order that you must set out the reasons for the termination.

And number three is that you must offer a right of appeal.

So, if there's any breach in those three steps whatsoever, you're going to be faced with an automatic unfair dismissal claim and also the ability for the tribunal to uplift any compensatory award somewhere between that 10% and 50%.

You really do need . . . I mean, the first thing that the that I always do, and I'm sure you did this in practice too, you get the papers in respect of a dismissal, and those are the first things you look at. Was this dismissal procedurally fair? Because if you're caught on the procedure, you're likely at an automatic unfair dismissal. So that's important.

And in terms of gross misconduct, unless the case is clear-cut, you need to make sure that you're conducting an investigation in respect of that. Your very first step is your investigation, and then you're into your three-step procedure after that. So, you need to be clear about that.

We mentioned earlier on just about the Burchell Test as well.

Christine: A good old 1970s case that's still a good'un though. It's still a good'un, isn't it?

Seamus: Yeah. Well, I think any unfair dismissal claim decision or judgement that you read from the tribunals in Northern Ireland, I would be very shocked if you don't see reference to Burchell. And whenever the tribunal are setting out the set out the background, the relevant facts, the law, and within the law they'll set out the case law as well that applies.

And Burchell is always . . . there are a few on unfair dismissal that always turn up. And certainly, during submissions, if you're doing those yourself as a solicitor or if you're counselling, these are the cases that the tribunal will be referred to.

But Burchell is a British Home Stores case against Burchell, and there were three sort of aspects that came out of that case in relation to any disciplinary matter that you needed to cover the bases for.

And this has withstood the test of time whenever the statutory procedure was brought in and around one, two, three steps and all of that. Burchell is still the relevant case law on it.

I was going to just take a look at the three-step test in practice when it comes to Burchell.

The first thing is that the employer has to show that it believed the employee was guilty of misconduct. So there has to be a genuine belief. It can't be a situation where the employee is of the view of, "This is retaliation, this is because they don't like me, this is because of a protected characteristic that I have, and they are treating me less favourably, and the detriment is dismissal".

There needs to be a genuine belief that the circumstances happened that are leading to the disciplinary process and the outcome and the outworkings of it.

A lot of the time with public interest disclosure or whistleblowing cases, health and safety cases, the employee is coming to the tribunal saying, "There were no other circumstances. This was the reason that they chose to terminate my employment". And that's an important aspect around the employer then satisfying the tribunal with their defence that there was a genuine belief of misconduct and that the employee was guilty of that misconduct.

The second aspect is whether there are reasonable grounds on which to sustain the belief that the employee was guilty of misconduct. Reasonable grounds. And really, what we're looking at there is that you need to be taking a sort of reasonable approach to the process. What we mean by reasonable approach is that another employer in your shoes with these set of circumstances would have acted in the way that you have. And that brings us around the reasonableness.

Then the third part of the test is at the stage which the belief was formed, there was as much investigation into the matter as was reasonable in the circumstances of the case. There has to be a reasonable investigation.

I think sometimes a lot of employers miss the investigation stage, and particularly it gives a really strong signpost that this was a rushed decision around the termination.

And for the Burchell test, that's an important one that you'll hear at submissions, or you'll see counsel directing the tribunal to that aspect of saying, "It wasn't a reasonable investigation. How then did they have a genuine belief, or how were there reasonable grounds here? Because there was no proper investigation that was carried out".

The Code of Practice gives good guidance in relation to your investigation. And I suppose it's that aspect of it's not that you're in a court of law. You're in a tribunal. It's a different test that applies. It's not beyond a reasonable doubt. It is a test that you are satisfied on the basis of your investigation that you've arrived at a safe decision, essentially, on that basis.

It's why you have to provide, within that disciplinary process, all of your evidence up front to the employee at the disciplinary hearing. You'll have to be providing copies of witness statements that were taken, if there's CCTV footage.

I've done enough cases where either my side or the other side had been satisfied that everything was done. And that's back to the point that you don't have to upturn every single rock. That's not the level of the test. But you do have to be fair.

I remember classically whenever I was a sort of newly qualified solicitor doing a case, and whenever I instructed counsel, counsel said to me . . . It was a theft case, and part of the theft was that . . . the allegation was that the employee was voiding off the sales and then taking the cash out of the till for them. And part of the evidence was that there should have been receipts from the till in relation to this that the client hadn't looked at.

That was the first thing that counsel said to me. "Well, where are the till receipts? We need to get those". And when the client said to me, "We don't have those", counsel said to me, "There's an issue here then in relation to, because that's evidence that should have been provided at the time". They were destroyed.

So, it's things like that where you need to make sure that you're furnishing all of your evidence that you have and you're giving the employee the opportunity to make comment in relation to that.

And it can get tricky around CCTV and how you provide that to the employee. Sometimes you've got to get your thinking cap on and you've got to be able to say, "We're going to let you come in and view the CCTV", because maybe the employee doesn't have a laptop that you can provide an email to. Thankfully, all of that's got much easier with mobile phones and all of that.

Sometimes if it's hard copy evidence, you have to make arrangements maybe 30 minutes before the disciplinary, an hour before the disciplinary for someone to come in to view that and give them time to prepare their response up.

It is important that you that you're being as fair as possible. Really, what all that breaks down to ultimately for me, I think, is that it's not an objective test. The employer has to be satisfied on the balance of probabilities. It's not beyond a shadow of a doubt or anything. It's that balance of probabilities.

Christine: I think what I encountered quite a lot is . . . Because quite often what has occurred is a criminal offence, and then that starts to muddy the water. People start to think, "Oh, I have to prove this as if I'm in front of a jury and in the criminal courts", and that's what starts to throw you off track.

My first port of call with very serious misconduct would always be the suspension of the employee. Would you still advise that that's the best thing to do to give yourself a bit of breathing room?

Seamus:  Well, just as a by-point, there is good strong advice in the Code of Practice around suspension. Suspension shouldn't be automatic. It should be reasonable, and it should be proportionate. Those are the tests for it.

When you're suspending somebody, you're usually suspending on the basis that they get full pay while they're suspended, and that can sometimes change the view of the employer.

I also, in my mind, think it's very difficult to terminate employment if a suspension hasn't been invoked at times.

Christine: I always thought that. Yeah.

Seamus: There's a feeling almost that it wasn't serious enough at the time that they need to be suspended.

So, look, the Code of Practice does cover off that unreasonable or unnecessary suspension could give rise to a constructive dismissal claim where an employee says, "Well, look, you've breached the contract of employment here".

I think when you're looking at how reasonable it is for a suspension; you need to look at the evidence that's been accumulated in your investigation and the well-being of the person that's under investigation. Are they still fit to be in work from that perspective, or are they better being suspended and then remaining out of the business?

The risk to the others if the person stays within the business, and the risk to the impact on evidence if the person remains. Would the person then behaving discussions, tampering with evidence, all of that sort of stuff?

Also, you're entitled to look at the severity of the alleged actions without making any decision. And what we call suspensions; we do them on a precautionary basis.

Christine: Yes. And without the assumption of guilt. There's always that. This is just to give us the space. Yeah.

Seamus: They're precautionary. But if you have somebody that is an allegation of theft and you're worried about a repeat of that, you're entitled to say, "Well, look, whilst I investigate this matter, I am going to place you under precautionary suspension. This is not a punitive step. It is precautionary. It's cautious. It protects you and it protects us until we can deal with the matter through a disciplinary".

I think, for me, absolutely, if the suspension is warranted, if the allegations are of such a serious nature, it is the go-to step that you should take. And it just puts a bit of space and distance also, and it allows you to fully investigate.

Even from the point of view of speaking with witnesses within the business, it's much easier to do if the person is not in the business, because there's a fear factor and all of those sorts of things.

Usually, where the suspension is invoked, you will put that in writing and you will set out carefully within that letter the terms of the suspension. So, you'll say things along the lines of, "Whilst you remain suspended, you still need to be available during working hours if we need to contact you". It'll say often, "You can't contact any customers, suppliers, or colleagues specifically around the allegations", and also that, "You should remain off the premises and only attend the premises with prior consent to attending the premises".

You need to do that, and you need to keep it under review. It's not something that you stick in and . . . You hear some of these investigations, particularly in the public sector, taking 6 months, 12 months. You need to keep it under review and make sure that you have a note to say that you've reviewed it and this is your decision, working out from that, and then write to the employee also to update them.

Christine: Seamus, what I encountered quite a lot is in the more serious cases, there is a criminal investigation ongoing as well. It's very difficult at times to cross over with that police investigation, and you don't want to be doing that. So how do you balance a police investigation with an internal employment law investigation?

Seamus: Well, I suppose there are two aspects of it. There are certainly some policies and procedures that I would come across, particularly if the individual is working with vulnerable adults, maybe in a nursing home or a school setting, or they're working with children. And sometimes the policies and procedures will defer to the police position and say that they will wait for the police outcome to come along.

That could take an immeasurable amount of time. You don't know how long that's going to take, and sometimes the business just can't afford to put the person out on suspension for that period of time and pay them.

So, you don't always have to wait for the police investigation to complete in order to proceed with your disciplinary. You're entitled to proceed on the basis of your evidence that you have and move forward on that basis.

If the person is charged and a court case comes down the line and they are found not guilty, and come back to you and say, "I wasn't guilty of this" . . . Or even I've had tribunal cases where the person says, "I wasn't guilty of this and the police have found me of it". Again, I suppose it's back to that point that the tribunal's not really there say whether somebody did or did not commit a crime. That's not the function or the role of the tribunal. That's the function of the court. The tribunal is there to provide oversight and overview in relation to the procedure that was applied to the termination.

Often, I suppose, the issue that arises is around sort of reputational damage that can happen around these cases of dishonesty and theft, and particularly if there are police investigations ongoing in respect of an employee that is not work-related.

Often, and I'm sure that you got this as well, you'll get some client that will phone you up and say, "Weekend papers, our employee is in the papers because there have been allegations made of domestic violence, assault". Any reading of some of the local newspapers here in Northern Ireland are filled with terrible stories around individuals.

And it often does strike me, because I'm dealing with it, the impact that that will have on an employer, what an employer should do if there's someone that has been named and shamed in a newspaper after a conviction and the impact that has, specifically if the employee has not notified the employer of any of the circumstances. Those are tricky and difficult cases to deal with.

I've had a number of cases where there have been allegations of sexual assault, where there have been social media postings, newspaper postings, videos appearing online. It's reputational damage for the business and the employer feels under pressure to move, to make decisions, particularly where other employees are saying, "I'm not willing to work with this person anymore".

You have that balance of there's no conviction in place to say that the person is guilty of it, but you have a backlash within your workplace, whether it's with your employees, your customers, your suppliers, or where there's very real risk to the business reputation.

And your mind automatically goes back to the McDade case, McDade and Emerson, or Norman Emerson Group Limited, and the reputational damage that could have been caused to the business if the business didn't be seen to take the appropriate steps at the time.

That's a good decision for anyone listening to read because there's a really good background to unfair dismissal cases and the law that applies in relation to it.

Christine: You come back to it time and time again, because the law is just set out really clearly, isn't it?

Seamus: It is a good decision in that sense. And I suppose, for me, those are the most pressurised termination cases that you'll see coming across the desk, where the client rings and says, "I have a scenario and I need to make a decision now about what's happening".

It's tricky advice to give in terms of protecting the client, protecting the business, and then worrying about a potential tribunal claim coming down the line as well, and how you seek to protect your client on the best basis in relation to it.

I suppose what I can say around all of that is that the tribunal . . . if you have procedural problems, you have procedural problems, and you'll need to deal with those.

You can also look at the other aspect where there aren't any procedural issues, you've covered off your one-two-three procedure, and often in the majority of cases it comes down to "Was the decision proportionate and reasonable? Did it fall within the band of reasonable responses?"

The tribunal will look at that in relation to whether or not the employer did all the things it should have done in relation to there being a fair investigation, fair opportunity for the employee to make their representations.

And ultimately, was your decision balanced and reasonable, or was it draconian? And it's that test again of "Would another employer with these similar circumstances have made the same decision as you?" That's the test, and that's the decision the tribunal must arrive at.

I'll mention quickly as well that sometimes not all is lost if you haven't followed your procedure in the way that you should have done. You can make an application to the tribunal for what's called a Polkey reduction, and that's on the basis of a former case of Polkey.

It's called the Polkey Principle, which allows the tribunal to reduce compensation in unfair dismissal cases where you're saying the employee would have been dismissed anyway had a fair procedure been followed. And again, that's in line with these sorts of cases that are up there with the gross misconduct, the theft, the dishonesty, those heavier cases.

The tribunal can only reduce compensation in relation to the compensatory award, and its range is between naught to 100%. So, you can take it right down.

I remember I defended a case where we had procedural problems, and the employee got their basic award, but the tribunal . . . Ultimately, on a theft case, I think the tribunal was of the view . . . Now, they didn't say it in the decision, as often they don't say it in the decision, but I think the tribunal was of the view that the claimant had committed the acts and reduced the compensation right down to zero. They still got their basic award.

The burden of proof lies with the employer in those cases to demonstrate that the dismissal would have occurred regardless. Often, within an ET3 response, if there are procedural issues, the response will say, "In the event that the tribunal finds that there are procedural issues, we will rely on the Polkey Principle to reduce and/or rely on the acts of the claimant themselves". You might say that they were 50% responsible here themselves and the compensation should be reduced accordingly.

Lots of issues for legal submissions there in relation to that one.

Christine: Sorry, Seamus, let me jump in. We're just being asked for a wee bit of clarity on the case that we said everyone should read. It is McDade v Emerson. We have talked about it a few times. You'll remember it hit the headlines because it was to do with an inappropriate song sung about a young woman who was murdered, the wife of a GAA star. And there was a video online that Mr McDade made that showed chanting and stuff in an Orange Hall. It was quite a famous case at the time.

What I'll do is I'll look it up and get Gosia to drop it into the email after today, so everyone can have a wee look at that.

Sorry. Go on ahead there, Seamus.

Seamus: Excellent. Interestingly, it goes to show you that on that case of McDade itself . . . And there was a subsequent tribunal case by Mr McDade's partner, Rhonda Shiels was her name, and she was an employee of one of the trusts. She had also been dismissed because there was a reposting or a liking or sharing of the video that impacted his case. So, you can see how these things have ripples as well.

And a lot of that is new territory for the tribunal as well because it's the new technology side and everything that's coming along with it.

But look, there's no doubt that the reputational aspect of it is a concern, specifically for those top-end gross misconduct cases, and particularly whenever there's no clarity around whether the person's guilty or not guilty of the actual offence.

You will look at every case on its own circumstances, but most times I'd be saying to the client, "You don't need to wait around for the police investigation or the police outcome here. It's two different processes". Generally and broadly, I'm saying this. It's usually safe to proceed on that basis.

Around the part of the reputational harm and things like that, you still need to follow your procedure. I suppose it does bring me back, then, specifically to the statutory procedure that you have. I talked briefly about that modified procedure. It is available and it is correct to use it in the correct circumstances.

Christine: I can see you're nervous there, Seamus, even saying it.

Seamus: But I would always take a cautious approach in relation to it.

It does come up specifically whenever the client rings you and tells you after the event that they've dismissed the person, and you're worried that there's an automatic unfair dismissal, and there's the potential then of looking at the modified procedure. But certainly, it is life-and-limb scenario, and the general advice will always be that you need to be fair and investigate.

And even if the client is saying to you, "I witnessed this. I watched it happen. There's no doubt in my mind about it", you still have to be fair because you have to give the employee the opportunity to put forward their mitigating circumstances if it's something that was witnessed.

It's a classic scenario. "Yeah, but you didn't see what happened just before that. You only saw the bit involving me". So, it is about making sure that your decision . . .

And if you always bring it back to that point, the tribunal are always going to be looking at, "Were you as fair as possible to the employee before you made a decision to terminate their employment?" That's why we're not making predetermined decisions.

And to come back to the polls, I think that's good to see, because there's one of those poll questions that if the answer had been "very strong", you would have been worried about the decisions being predetermined. That's why we do keep our mind open, and we don't form our view until we've really gone through the disciplinary process.

I'm always a big fan of, at the very hard end of cases with dishonesty and theft and fraud, that there's proper weight and consideration given to what the employee has put forward as their circumstances, and that you're not making that decision with a, "Can you step out of the room for 15 minutes?" and then bringing the person back in to say, "Right. We're terminating your employment".

I'm a bigger fan of making sure that there has been proper consideration given. I don't think that you need to necessarily issue that decision immediately. And that worries me sometimes when I see that happen with cases that come across my desk. I think a tribunal might consider, "This is the most serious step that you could take in respect of the employment. Did you give it proper and fair consideration?"

Christine: Brilliant. Thank you very much, Seamus. So just mindful of the time, I think I'm going to wrap up with what I think are the takeaways for today.

I think what we've seen today is that these types of cases are won and are lost on the quality of the employer's investigation, the decision-making, and, as we always like to bang on about on Unemployment Law 11, documentation. Make sure you write it down. Don't just do it. Write it down.

So, the three takeaways really are to consider your evidence, follow a fair process, and record your reasoning. If you're doing that correctly, you're going a long way to satisfying that Burchell Test that we talked about.

Thank you all very much. Thanks very much, Seamus, for your insights today.

As we've seen today, fraud isn't easy to spot, so you need to help your employees' awareness of fraud in the workplace. We've got a short eLearning course that you can avail of. It helps your staff recognise the warning signs, understand what to look out for, and know how to report concerns.

It only takes around 30 minutes for them to complete. It's tailored for Northern Ireland, which is extremely useful. You don't have to translate any of that English law. It's Northern-Irish-specific.

So, if you'd like to find out a bit more about that, you can have a look at our website. Gosia has dropped the link into the chat there. Reach out to my colleague, Debbie Wilson, who will be very happy to help you with this. Her details will be in the email or on our website, as Gosia has dropped that link in.

And please remember you can also head over to the Legal-Island Hub to get your 14-day free trial to access all the materials on there. This includes access to Seamus Says, which are summaries of Seamus's answers to the questions that I put to him on Employment Law at 11. Extremely useful, extremely accessible.

If you'd like to catch up on any podcasts you've missed, you can listen to us on Spotify, Amazon, and Apple Music. I know a lot of you do, so thank you very much for that.

And please remember you can always reach out to Seamus and I on LinkedIn.

Now, if you could just take one additional second, there's going to be a short poll here at the end. Just tell us what you think of today's webinar, a 5 being we were absolutely outstanding and 1 being the opposite, which we're hoping you don't click.

Thank you very much for that. Have a lovely weekend.

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