In this month's webinar Caroline Reidy, of the HR Suite discusses some key learning points for employers arising from recent case law decisions.  Caroline focuses on matters relating to equality, unfair dismissal, dignity and respect and fair processes.  

Caroline discusses the following cases:

Boots Retail Limited v Luka Glogoski

CPL Solutions Ltd. v Oluebube

G Keogh V Green Isle Foods (2007)

A Store Assistant v A Store

With Rolanda Markey from the Legal Island Team, Caroline answers questions including:

If someone fails to achieve the requirements of a performance improvement plan, do you still need to carry out a formal investigation before conducting a formal disciplinary meeting?

So what if it's a capability issue, so they're not able to do the job as opposed to not trying to do the job? Is there a difference? Should you treat it differently?

The Recording

Transcript below:

Rolanda: Good morning, everyone, and welcome to our webinar with me, Rolanda Markey, from Legal-Island and Caroline Reidy, Managing Director of The HR Suite. You're very welcome this morning. Apologies if there's any background noise. My neighbours are getting a lot of work done, so it's been quite noisy for the last few weeks.

Legal-Island's webinars and podcasts are sponsored by MCS, and MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them to the most talented candidates in the market. And if you're interested in finding a wee bit more about how MCS can help you, then head over to www.mcsgroup.jobs.

Now, if you're new to our webinars, then also you're very welcome. Let me tell you a wee bit about Caroline Reidy, our speaker. Caroline is a past member of the Low Pay Commission, and she's also an adjudicator in the Workplace Relations Commission. She has completed a Master's in Human Resources through the University of Limerick. She is CIPD accredited, as well as being a trained mediator.

Caroline in terms of work experience has worked across the various areas of HR for over 20 years, both in the Kerry Group and the retail and hospitality sector, where she was the Operations and HR Director of the Garvey Group prior to setting up The HR Suite in 2009.

Caroline speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR, and the challenges and opportunities that that presents for employers and employees.

She's also a regular speaker of the Legal-Island Annual Review of Employment Law in November each year. And the confirmed dates for this year's event are 30 November and 1 December. Caroline will be talking at the Annual Review on the codes of practice for both bullying and harassment. She'll take you through what those are, what the differences are, and really how you should tackle both of those issues.

In this month's webinar, Caroline is doing something a wee bit different. She's going to discuss some key learning points arising from some case law decisions. And these will focus on matters relating to equality, unfair dismissal, dignity and respect, and fair processes, which is always a really important point in any case that deals with dismissal or disciplinary issues.

Now, remember, if you've any questions for Caroline, if you just want to pop them into the question box, we'll deal with those at the end.

The other thing I want to say is you should see on your screen a hand-out option and the list of cases that Caroline is going to be talking about today, as well as a link to that case decision is attached as a hand-out to this webinar. So you should be able to download that.

We'll also send that out in the follow-up email, which will go out tomorrow. So you'll get a list of those cases that Caroline is going to be talking about today.

So thank you very much for time. Over to you, Caroline.  Great to see you again.

Caroline: Great to be here, Rolanda, and lovely to see you all. This session, we decided, would be helpful because, I suppose, case law is becoming more and more topical. And since the fact that decisions now in the WRC, the parties are named, and obviously the media can be present, and in published decisions you see the person's name, the media are giving them a lot more coverage as a result.

And ultimately, in employment law, we all know the huge impact case law has in helping us update our policies and procedures and make sure that we're taking learnings from a best practice perspective from case law. So case law is hugely important from that perspective.

I'm going to start with the first slide, and I'm going to go through cases that I think there are good learnings from. And hopefully, you will take some good learnings from them, too.

I've picked a selection of cases that have been successful from an employee perspective and successful from an employer perspective. And as Rolanda said, we've summarised all the links to all the different cases so you can go in and have a read of them, if you'd like. But I've pulled out the key learnings just to discuss with you this morning.

Boots Retail Limited v Luka Glogoski

So, in this case, many people would say, "Look, I can never dismiss somebody to do with performance without needing to end up in a case". And I would always argue that if you do it professionally and make sure that you do follow the rules of natural justice and you follow your own company policies and procedures, you can indeed manage to do that.

And we know that this is going to be the minimal amount of employees that are going to be in this situation. The majority of times, performance would improve when we go through a performance improvement plan. But if that's not the case, this gives you this backup option.

So this is Boots Retail Limited versus this employee, Luka. And in this claim, the respondent company, Boots in this case, said the complainant had been fairly dismissed because he was underperforming in the role.

So at the time of dismissal, a final written warning relating to the employee's underperformance was active on his file. And he had received poor performance ratings in six of the previous seven years.

So it shows that, if anything, the company were being super patient in relation to setting standards and hoping the employee would improve and achieve those standards, but he wasn't doing so for the last six out of the seven years.

As a result, the employee had been placed on a formal performance improvement plan prior to his dismissal. And the dismissal was carried out in line with the company's disciplinary policy.

A few key points to note in relation to this. First of all, did the employee receive a copy of the policy in relation to discipline and grievance? Also, did the employee received details of his underperformance? Were there clear goals and objectives set for this employee to make sure he was clear in relation to the acceptable and fair standard required? And was the standard that we were expecting from him commensurate or comparable to the rest of his colleagues doing the same job? They're all important criteria we need to consider.

If an employee is still not performing in line with being given normal coaching and feedback, we know that we then need to consider putting an employee on a performance improvement plan.

And for me, the performance improvement plan should have a process that's outlined in relation to its purpose. And its purpose is to ensure we correct the underperformance and we support the employee in that regard.

To me, it should be a set period of time, and making sure we do the regular check-ins with the employee during that time is crucial. Often I find that people start the performance improvement plan because the issue has occurred, but they actually don't do the check-ins every couple of weeks that were supposed to happen until a major issue happens again. So if you are doing a performance improvement plan, adhere to the process of those check-ins.

And the first meeting is really important because you're setting the standard of expectation. So you're setting smart goals and a timeline in relation to when you should receive that improvement change. And also, you're offering any support and training that the employee may need.

And again, you're documenting all of that. Again, the documenting of the process is crucial to show that you have done fair process and fair procedure.

If the person then fails the performance improvement plan and doesn't achieve the required standard of performance, then we go down the road of disciplinary.

And again, in line with your disciplinary procedure, one of the reasons we can invoke disciplinary is the employee's capability and their standard of performance to do the job.

Again, you're going through the investigation process, you're going through the outcome, and you're going through the appeal process. So they get the rules of natural justice. Again, that's being fair and reasonable to the employee.

That's what, in this case, the employer followed in terms of those steps. So, again, they did all of what we would expect from a best practice point of view.

So in this scenario, then, the complainant claimed there were no real performance issues, there was insufficient time and inadequate support to complete the tasks and achieve the objectives, his dismissal was predetermined and rushed, and the respondent had overly strict standards of expectation, which he said were impossible, not practical, and nit-picking.

So, again, we really need to make sure that any process we put in place can show that there are valid performance issues, that we're giving the person in the performance improvement plan the same standard of objectives and time to complete them as colleagues who are doing the same job, and as a result, that addresses a lot of these issues that are raised.

In this case, the court found that the respondent was entitled to be concerned about the complainant's performance deficiencies and that they were entitled to set their own standards and attach their importance to them. And as a result, they held that this dismissal for underperformance was fair and reasonable in the circumstances.

So, again, the key learnings here are to encourage us to go back and identify, "Have we an updated discipline procedure in place? Have we considered underperformance as part of that? Have we a performance improvement plan as part of that process?" And as we set our own standards of performance, that failure to achieve that standard would result in disciplinary action up to and including dismissal.

So some good takeaways to how we conduct our performance management, and also some good takeaways in relation to making sure that our policy is reflective of the steps that we've outlined here. So hopefully, there are some good lessons for everybody in that case, as I move on to the next case now.

Age Discrimination Case

In the next case, we have an age discrimination case. So we'll all be really familiar with the nine grounds under equality legislation that require us to ensure that we treat everybody fairly and that they're not discriminated against due to one of those nine grounds. And one of those grounds, along with gender, family status, membership of the Traveller community, is age.

And this age discrimination case is one where a teacher went for a job interview. And one of the people on the interview panel asked had he the energy for the job.  In this scenario, the court found that this was discrimination on the grounds of age, and he was awarded €3,300 for age discrimination.

For me, there's a key requirement to make sure that all people who sit on interview panels are appropriately trained. And it's one of the probably really common and topical courses that we run for anybody who sits on an interview panel, because sometimes you ask somebody to sit in an interview panel, particularly in charities, or voluntary bodies, or schools, etc., that might be a lay person and not have a HR background. And we ask them to sit in on the panel to assist with the process.

Even though the chair of that panel might be very competent, they might be an HR person, or they might be trained already in doing interviews, it's the importance of making sure that everybody in that interview panel knows what they can and what they can't say and the risks associated with discrimination.

Remember, when we talk about harassment and those nine equality grounds, one incident of harassment, i.e. discrimination linked to any one of those nine grounds, is meeting the definition of a breach in relation to discrimination, and in this case, associated with age.

So a really important watch-out in terms of anybody that you have sitting on interview panels, and in making sure that they're trained, particularly more so in relation to the voluntary, the charity sector, and anybody you might have on your boards.

The majority of the time, anybody sitting on an interview panel, from a company perspective, has done interview training. And if they haven't, that's definitely something I would strongly encourage, because making sure you're compliant in this regard is really important from an employer branding perspective. They're the face of the company. And now, interviews are about as much selling the company as they are the person selling themselves to you at an interview. So a good watch-out here to flag.

And I think everybody is a lot more conscious as well now of the damage to employer branding when the parties are named. So the last thing you want is your organisation to be named for any form of discrimination at an interview, and just making sure that that's addressed in this regard.

So I'm going to move on from that, but a really good case, I think, just to again remind us of the consistency of interviews.

CPL Solutions Ltd. v Oluebube

So my next case is another discrimination case. We're all familiar with the new Code of Practice in relation to bullying at work that came out in Christmas of 2020. It seems like ages ago now. We've been doing a huge amount of work in relation to training in that new code of practice because it was such a big code of practice in terms of change that required us to update our policies in relation to bullying and harassment.

But subsequently, more recently, we have a new harassment code of practice that was published by IHREC, and as a result, many organisations are now going back to update their policy also in relation to harassment.

Again, harassment, as we know, is linked to the nine grounds associated with equality. And in this scenario, this warehouse operative was employed by CPL and was working in an organisation. He took a racial discrimination case under the Unfair Dismissal Act, where he said he suffered racial abuse from his team lead. And on two occasions, the team lead called him a chimpanzee and made monkey noises.

The employee, or the complainant in this case, said on the first occasion he didn't report the incident. However, he did report the second one, and it led to an investigation.

And the Labour Court chair said that this behaviour was considerably more than harmless banter. And this is one of the areas when we do dignity and respect at work training where a lot of people would say, "Well, I never realised that by saying that, that that could possibly be considered to be discrimination", or indeed harassment, depending on what was being said.

So, obviously, we know from an employer point of view we have an obligation to do training in relation to dignity and respect, and we have an obligation to ensure our policies are up to date. And this training is part of the vicarious liability obligation that we have to ensure we've done all we can in relation to addressing the issue.

So, again, the damage and the reputational damage to organisations that are promoting diversity and dignity and respect at work is really important. But in this scenario, compensation of €30,000 was awarded, which is also a very significant award.

So two points additionally to make here. One is we have a vicarious liability to train all employees, but second of all, we have an additional obligation to train managers to make sure that managers are really clear and proactive in relation to their obligation to lead by example, and also to address anything that they see that's inappropriate. And that's particularly relevant in this scenario where it's a team lead that was involved here in terms of making those comments.

And again, one of the things from an employer perspective is the courts, whether that's the WRC or the Labour Court, are going to check that you as the employer have taken all the steps that you can to meet that vicarious liability.

One is to make sure that you've got your policy in place. Next is to make sure that you've done training for your employees, and you've also done training for your managers, and also that you've got a culture that doesn't accept an unacceptable behaviour. So, again, really important to make sure that that's happening.

If it's a case that the organisation knew that this was going on, and we considered this to be acceptable and do nothing about it, then you're not meeting your vicarious liability obligation. Again, a really important takeaway in this case in relation to the training, the policy, etc.

So, hopefully, that's been a helpful case just to remind as I move on to the next one.

G Keogh V Green Isle Foods (2007)

So the next case is a Green Isle Foods case. In this case, the claimant believed his employer was challenging his competence to do and complete his job. And the employee went on a period of sick leave, and when he came back, he was doing lighter duties. Subsequently, he resigned his position.

The employee didn't invoke the grievance procedure prior to resigning. And in this scenario, the tribunal said that this claim for constructive dismissal failed basically because there were other avenues open to him other than resignation, and he failed to establish that it was impossible in all the reasonable circumstances to continue his employment with this employer.

Constructive dismissal is always one that we worry about when you've got a scenario where an employee may resign if they're undergoing a performance improvement plan, if they've put in a grievance, if they've obvious issues going on in their employment.

And the advice always is if you have somebody and you know that there is something going on, that you would ask them to reconsider their resignation and remind them of the grievance procedure, if that's relevant to do so, if you feel that there are issues going on parallel to that.

What's also crucially important is to ensure that all employees have the grievance procedure. And again, as part of your obligations, the employee receives their contract of employment, and then they receive their discipline and grievance procedure normally as part of their staff handbook, but again, making sure that that is the case. And again, if you do any updates in relation to the grievance procedure, that that's obviously circulated to all employees.

So again, another good example of dealing with somebody who may be out sick, any other issues, that you remind them of the grievance procedure should they wish to make a grievance. If they're aware of the grievance procedure, and if they resign without exhausting it or without showing that they have engaged with it, then from an employer perspective, you've done all you can.

An important differentiation, I suppose, is in an organisation where they may raise an issue, and the most senior person in the organisation has been involved in that issue, and they feel that they have nobody else to go to, and all other avenues are closed to them, that's where the contact person is really, really helpful, which is part of the obligation in relation to the bullying code of practice.

And again, having that contact person be available to them as an alternative that they can go to if, for example, they say, "Well, I had nobody else to go to in this scenario".

Obviously, we're acting as a contact person for many of our clients that don't have maybe enough people in the HR department to have separation of the contact person from somebody who would be involved in other elements of HR.

Again, the contact person, making them available to people not just for bullying. Many organisations have done, and I think there's a lot of merit to that as well.

So, again, once you have the contact person trained, they should be competent and able to signpost the person, which is their main job, in relation to where to go if they have an issue.

A Store Assistant v A Store

So I'm going to move on to our next one. In this scenario, the store assistant was deemed to be harassed in the workplace, but the employer was not found to be liable because they had met that vicarious liability to show that they felt that it was deemed that they did all they could to try and prevent it.

A very important case that's a recent case, which flags, I suppose, that obligation to, again, meet your obligation in relation to having all the elements of that vicarious liability in place that we've touched on already.

So, in this scenario, a store assistant made an allegation against a fellow male colleague. And in this case, the adjudicator said, "I have found the complainant experienced sexual harassment in the course of her work. However, the respondent can rely on the defence in the Act as they took reasonable steps to prevent the harassment, to prevent the victim from being treated differently in the workplace or in the course of her employment, and reverse the effects of harassment".

So, again, that's really important in terms of your obligations around vicarious liability, so NB to the training, NB to the manager training, and NB to the policy.

Again, majority of organisations have updated their policy in line with the two new codes of practice, the one for bullying and the one for harassment. But even still, when we're doing investigations, some have not. And again, that creates a real issue if you have someone who raises an allegation.

So it's an NB thing that, obviously, you can get somebody like us to assist you with, or you can update yourself in line with the codes of practice. But it's, I would argue, a priority to ensure that's done at this stage, and that you do the complimentary training that goes with it.

Security Officer V Supermarket Owner

So my next case, if we move on, is in relation to a Security Officer v Supermarket Owner. Again, I tried to balance as many examples of the same type of cases where the employer was successful or the employee was successful. And in this scenario, this complainant chained constructive dismissal, and was awarded €25,000.

In this scenario, both parties gave evidence. The claimant stated he felt bullied and he felt that the manager's behaviour towards him was inappropriate. The respondent said bullying is not what they did, that they were giving reasonable criticism of his conduct, his performance, and his attendance.

And the adjudicator found that while it is reasonable to make the distinction, she wasn't convinced in this case that it was professional constructive criticism. And as a result, she awarded €25,000 in this unfair dismissal claim.

This key element of the case was the respondent tried to micromanage the complainant and became increasingly more critical of his work following disciplinary action for unauthorised absence. So the adjudicator felt that there was a link to the unauthorised absence, and also the respondent didn't follow fair procedures and issued a verbal warning as part of a performance meeting.

So, again, why this case is so helpful is it shows . . . In the first case that we looked at where the business followed all the appropriate steps, had all the policies in place, made sure that the feedback was being given objectively and professionally, and this example shows that a fair process didn't apply, a separation of process didn't occur, and also issuing verbal warnings without that happening meant that his claim was successful. And as a result, the person received €25,000 in compensation.

Again, for many constructive dismissal, it's a high award, €25,000. But remember, under the Unfair Dismissal Act, the options the adjudicator has are reinstatement, re-engagement, or compensation. So always tread carefully, because the biggest risk for most businesses would be that somebody they dismissed would possibly be re-engaged or reinstated. So that's always one of the ones you have to be really careful.

So I think if we move on to the next slide, that will be super. Fantastic. And there are all our case law examples on two minutes to spare, Rolanda. So we did very well. Delighted to pass over for any questions people may have, and we'll address those.

Rolanda: Thank you very much, Caroline. Just before we do that, actually, you talked a lot there about inclusion, and I just wanted to highlight a special offer for our attendees today of our eLearning course on diversity and inclusion and the importance, and I think you've emphasised that an awful lot today, Caroline, of training.

So many cases around equality issues are a lot of times on unconscious bias, and people don't realise that they are treating somebody differently, that they're being influenced in a negative way. So it is important that as an organisation, you do regular equality awareness type training. And our eLearning course on diversity and inclusion is a really good start for that.

As you can see there, webinar attendees today get 50% off. So if you'd like to find out a wee bit more about that, if you want to just contact debbie@legal-island.com, she will give you a quote for your organisation. It's a really good course.

Now, as you can imagine, Caroline, there have been a few questions, particularly around the disciplinary and the performance issues. It's always a really, really popular topic.

So, first of all,

If someone fails to achieve the requirements of a performance improvement plan, do you still need to carry out a formal investigation before conducting a formal disciplinary meeting?

Caroline: So what we would always say is, first of all, what does your policy say? And for many organisations, they're actually silent in relation to performance in their staff handbook or in their disciplinary procedure. So they actually haven't got a company policy in relation to what you do.

I would advise the first starting point is to have clarity in relation to what is your policy. So that's number one, because you have to follow your own policy if it is in place.

And number two, for me, the performance improvement plan is a process that you need to go through if you are going through a performance improvement plan. You're not required to always do it, again, depending on your custom and practice, your policy, etc. But if you are going through it, you need to go through the process before you commence a disciplinary. The idea of a performance improvement plan is that we're showing we're doing everything we can to support the person, achieve the required standard before it becomes an issue.

And in one of the case law examples that I gave you, the first Boots one, the person six out of the seven years hadn't met the required standard. I would suggest that the company waited too long before they went down the road of a performance improvement plan, for whatever reason. Every case turns on its own facts. We don't know the full detail. We only have a snippet of the story in any case.

But as we take learnings from them, one of the key things for me is you need to have a policy, because performance improvement plans generally do improve the performance of the person who undergoes them and it will be a small percentage of people that will end up in the process to start with.

So definitely, for me, I would say do your performance improvement plan, conclude that, and then if the person doesn't meet the required standard, they know going into it that next stage in the disciplinary process due to not meeting the standard of capability for the job.

Rolanda: And that actually leads me on nicely to the next question.

So what if it's a capability issue, so they're not able to do the job as opposed to not trying to do the job? Is there a difference? Should you treat it differently?

Caroline: I would say you treat them the same, because ultimately, your aim is to support, give any training, give any coaching, give any mentoring, give any support that you can. But ultimately, if the person doesn't require the standard, whether that's interest, motivation, capability, ultimately, that's the next step of the process.

Like for anybody who has been through performance improvement plan, many people need to use the employee assistance programme. It can be very stressful for both the manager and for the person who's going through the process. So we want to try and support both the manager and the person who's undergoing the process as much as we can because it's not a pleasant or easy process. But it's an effective one that should be used if performance standards are not being met.

Rolanda: Okay. So if an organisation, just to try and clarify this, has a performance management procedure in a way which mirrors a disciplinary procedure in that it has various . . . maybe it calls it performance improvement warnings rather than disciplinary warnings. Provided they get to the same outcome, which is ultimately dismissal, is that okay if that's the way they choose to deal with it?

Caroline: It's okay, but remember, a performance improvement plan doesn't have any disciplinary action in it until the process is concluded normally. Performance improvement plans are all about, "We're setting a standard for you to do so many widgets in a period of time, and we're supporting you to achieve that number of widgets. It's the same number of widgets that we're asking all your other colleagues to do at the same quality standard and to the same timeliness standard.

"And if you don't achieve this number of widgets with the support, coaching, and one-to-one time with your manager, that they're going to give you everything they can to support you, then that will result in disciplinary action thereafter". And the disciplinary action to do with capability will commence then after that.

Rolanda: Okay. I mean, inevitably, we're going to get a question about probation in there.

So in relation to poor performance during probationary period,

is it okay to dismiss without going through that disciplinary process? And how long do you have to wait before you would dismiss in those circumstances?

Caroline: So we're familiar with the Over-C Technology case, where in that case, if you have a clause in your contract when somebody is on probation, you can terminate for no reason or any reason whatsoever. However, in reality, we very rarely invoke that, and I wouldn't be encouraging us to invoke it.

When somebody is on probation, you'd normally be giving them feedback, giving them an opportunity to improve, because it could be the person's first job, they mightn't be aware of the standards, whether that's standards of etiquette, standards of performance, they may need additional training. And normally, when you give somebody that support and coaching during probation, they achieve the required standards. And again, it's back to "What does your probationary clause say?"

For many, I always believe they should be given the opportunity to respond. They're given the feedback to say, "Look, Caroline, you're not performing to the required standard. You really need to improve. And just to remind you, you're on probation. And you'll remember your contract says, 'Failure to improve during probation puts your job at risk, and your employment may be terminated as a result'", particularly if that's likely to be the case. So the person has the heads-up and they're clear in relation to where they stand and what to expect, because then they're more likely to improve, if they can improve.

Again, for every finger we point, oftentimes there are so many pointing back at us. We mightn't be clear in relation to objectives. We mightn't had done a great job with the initial training. There are so many reasons you're on probation that we can remedy the situation, that I always believe you try and do what you can during probation to do that.

Rolanda: And I suppose just a sort of final point on this one,

Where there is potentially a disability that is impacting somebody's performance, what impact does that have on the whole way it's managed?

Caroline: So if somebody has a disability that you're aware of from the get-go, we have to provide reasonable accommodation. And that reasonable accommodation needs to be identified based on consultation with the employee and consultation with a medical practitioner, should the need arise.

And once we've put all those reasonable accommodations in place, then we have to assess the performance separately to that, but considering the reasonable accommodations as well.

So that might mean that the person's concentration, for example, can't last the full time that maybe another colleague, but they're very good in the morning. Another additional measure of reasonable accommodation would be then to shorten the person's hours, for example, if that would be helpful.

So you have to continue to consider any impact the disability is having on their performance and see if you can put more measures in place to assist them achieving that standard of performance. So it's tread carefully, and also make sure that you fully engage with the employee and fully engage with any medical input that would be helpful.

Rolanda: Okay. Sorry, one final question, because this is always a popular topic. In terms of the duration that you will allocate to allow somebody to improve . . . It's very hard. I'm not asking to put a time limit on that, but that Boots case, seven years seems probably like an unreasonable amount of time for an employer to wait. What would be seen as reasonable amount of time perhaps to allow somebody's performance to improve? What kind of timescales would you build in?

Caroline: I always believe that if you're going into a performance improvement plan, you've done all the normal job coaching, job mentoring, you've looked at the training, you've done everything you can that normal management and normal support and supervision and coaching would expect of you. So when you're now going into a performance improvement plan, it's a more formal process.

Again, every case turns on its own facts, but I think depending on the job. Some jobs, it could be three months. More jobs, people may need six months for any change to happen. But I don't believe they should be an extended period of time. I believe that they should be a reasonable amount of time, that you agree with the employee that a reasonable time would facilitate an improvement of performance. But I wouldn't be putting in kind of an extended indefinite amount of time, Rolanda.

Rolanda: Okay. It's one of those that's every case on its own facts sort of thing. I'm not sure I entirely understand this question, but I'll ask it anyway. So what if an audit wasn't completed and it was one employee who was required to carry out that audit? They would have been aware that one was coming, like a secret shopper scenario. Should an investigation be required or straight to disciplinary?

Caroline: Always an investigation is required. There could be so many reasons why that person says, "I didn't do the audit", and any mitigating circumstances need to be considered. So I would say you always do an investigation, unless the person comes and says, "Caroline, I 100% messed up here. I didn't do it. I know I should have. I've no reason for it whatsoever". I'd still meet them and clarify and confirm all of that as part of the investigation.

Remember, separation of process is there for a reason. So even though the person in my example had no mitigating circumstances, in your question, Rolanda, the person may say, "You gave me other work to do. You asked me to prioritise something else. I was out sick the day before. I was covering someone". The list could go on. So absolutely, an investigation is required.

Rolanda: It's very hard to think of circumstances where you wouldn't investigate, unless perhaps you're the manager and somebody comes up and punches you in the face. Unless, of course, you were provoking them, you might need to investigate that. But it's very hard to think of . . .

Caroline: And that still needs to be investigated by somebody who wasn't involved in the incident. So it would still need an investigation. Very rare. And as I say, the example I gave you there where the person comes and admits, I'd still meet them in the cold light of day just to give them an opportunity rather than take it in the heat of the moment.

Rolanda: Yes. And there's always, I suppose, that need to consider mitigating factors, what's going on with people, and was there any background.

Caroline: Investigations, by their nature, if you don't do the investigation right and if it's not thorough, and independent, and comprehensive, whatever you do after that, you're building the house on very un-solid foundations. So the outcome and the appeal, etc., they can remedy it without doubt in review. But I find if you complete the investigation and it's done by a trained investigator, you've a much more likely successful outcome.

Rolanda: Yes, absolutely. And as you say, it's the foundations for any good procedure. Just to change tack, then, there's a question about the CPL Solutions case. I don't know, Katie, maybe if you could put that wee slide back up again. For the CPL case, was the workplace also held liable or just CPL as the agency employer?

Caroline: Now, we have the link to the case. So the case may be clarifying that a little bit more. I can't remember, Rolanda, from my memory, but whoever is the employer of the person, they're the person that are responsible.

Rolanda: Okay. Sorry, we just put that back up again.

Caroline: In the case list I sent you, Rolanda, all the cases are there, so you can click through and have a look. It might mention it in the case. I don't remember it from memory, but at least somebody can have a look if they'd like.

Rolanda: Okay. Well, look, that really brings us to the end. Caroline, thank you very much. I just want to finish by asking you if you could perhaps give me a reason why anyone should attend the Annual Review of Employment Law, in particular to hear your session and all the other great sessions that are coming?

Caroline: Thank you. I suppose for me before I ever became a speaker, and I've been a speaker I think now for seven or eight years, but it's always been . . . For me, myself, I listen to every single session. It's booked into the diary. I think it's just really, really good for any practitioner to get a really good insight. For us as speakers, we try and give you the most up-to-date, relevant, useful, practical info. And I hope you will enjoy my session. Definitely worth putting the dates in the diary.

Rolanda: Okay. Thank you, Caroline. Our next webinar, then, with The HR Suite is on 4 August. And after that, we also have a webinar on 31 August with our second in our series of Lunch and Learn with MCS. And then 31 August, we're going to be looking at the use of application forms versus CVs and what people prefer, what employers prefer. And we'll clarify what our next topic is with The HR Suite nearer to time.

So thank you all. As I said before, our webinars are turned into podcasts. So if you're a podcaster, and I know a lot of people are, you can listen again to this. Stream it from any of your favourite podcast options. You'd think I knew what I was talking about. I'm not really a podcaster, I have to say, myself. But it's available there to listen again.

And we'll send you out that link, the list of cases. There's a hand-out, but we'll also send it out in the follow-up email tomorrow.

Caroline, thank you once again for your time. Great to see you. We'll see you all again 4 August. Bye.

Caroline: Thank you.

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