'Employment Law at 11' is a series of 45-minute webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors.

Scott Alexander, Head of Learning and Development at Legal-Island, discusses your Northern Ireland employment law questions and topical HR issueswith Seamus McGranaghan, Director at O'Reilly Stewart Solicitors.

This month,

• Sexual harassment;
• Email/System access for employees on long-term sick leave;
• Dismissal during the probationary period;
• PHI dismissals;
• Dismissing an employee after probation but before they have 12-months service;
• Dealing with sickness patterns (during the school holidays)
• And much more

Questions in this webinar include:

• The definition of harassment considers action toward an individual or group, but what if that action isn't in relation to a group, but not specifically directed to any individual?
• Is it acceptable for employers to remove email system access for employees who are on long-term leave, including maternity leave, sick leave, career break, etc.?
• A member of staff has been absent on sick leave for the past three years. We have not been in touch with the employee on a regular basis. We were recently audited and advised to let her go. How do we handle it?
• Does probationary period law and practice apply to staff redeployed within the organisation for ill health or an organisational change?

Transcript

Scott: Good morning, everybody. This Scott Alexander. I'm from Legal-Island and I'm here with Seamus McGranaghan from O'Reilly Stewart Solicitors. We're in the middle of Belfast. We're broadcasting live. We're joined by Hannah McGrath doing the research from the employment team at O'Reilly Stewart and the app-maestro Arnold Majcher from Legal-Island, he's checking all the sound systems.

So if you're just joining us, we're just making sure that we're getting the sound levels correct. There have been one or two issues with the system, and given what happened to O2 yesterday with things going down, we just want to make sure that we're perfect before we start.

Just if this is your first time listening, we obviously broadcast live. You can send us questions through the chat box. We'll read as many at out as we can. Received quite a few in advance from listeners. Some have written to me this week, scott@legal-island.com, and I've taken up those questions and we've sent them on to Seamus to have a look at.

We're going to start with harassment. We're then going to move on to email access for people are off on long-term sick leave. We then have a series of other questions. We're going to look at one on more sick leave, somebody off for three years with permanent health insurance. And then we're going to zip into a quick it's been extended past beyond a year.

Then we're going to zip back to another one about minimal procedural action, again to do with probation we're looking at. Then we have somebody who's off during school holidays, if we get to that one there, where they seem to disappear and get sick and in a kind of pattern round about school holidays. And then we'll finish off with one or two other questions and get to them. And of course, send your questions in via the chat box as well.

You can find all the stuff on the website afterwards. We have recorded all of the webinars. We've broken them down and we've transcribed all of the questions, so if you go onto the Seamus Says section on the website in the regular features, you'll be able to search for particular questions and you'll see all of the Q&As sitting there for you as well.

If you’re a subscriber, you'll be able to access all of the other podcasts and webinars and case law decisions and everything else that you can find from Legal-Island.

And there's lots of new stuff starting next year that we're going to have. We'll have coaching issues and we'll also have issues on handbooks and many other surprises for you, starting in our 21st year as Legal-Island. We started in 1998 so we'll be 21 next year, so lots of stuff to look forward to.

Okay, let's get onto the first question. I'm getting a little message here that we're cutting out every once in a while, so please stick with us. The recording should be working, but it would be a bit annoying if I were listening at the other end and it was cutting out. It'd be a bit annoying if I were listening at the other end to me all the time as well. We'll try and bring in Seamus before too long. In fact, we'll maybe bring him on now. So anyway, it's nearly Christmas, Seamus, so Merry Christmas to you.

Seamus: To you as well.

Q: The definition of harassment considers action toward an individual or group, but what if that action isn't in relation to a group, but not specifically directed to any individual?

Scott: The first question that we have here concerns harassment. And it came in from a listener earlier this week. The definition of harassment considers action toward an individual or group, but what if that action isn't in relation to a group, but not specifically directed to any individual?

We have an example. Say an employee A has a partner, niece, nephew, etc., of African descent. Another employee, B, regularly makes derogatory jokes about people of African descent with employee A. Employee A reports this. Obviously employee B can be disciplined in line with dignity at work. But could employee B subjected to disciplinary action under the harassment policy? Is there ever a time when harassment can be claimed when not specifically directed towards and individual?

Seamus: Well, this has been a really developing area of law and this idea now of, you know, associated harassment that we hear about. Certainly I've dealt with a number of claims relating to associated harassment within the tribunal. Some have been correctly pleaded and others haven't been and certainly at hearings the judge has been correct to point that out.

But absolutely, there is a definition of associated harassment, and the kind of easier way to start on this, if we look . . . I appreciate this question is really about race and it talks about people of African descent and things like that, but the case law that I've looked at really goes to issues involving sexual harassment and those are completely transferrable across in terms of almost any type of harassment that can happen.

But essentially, if we look at the nature of harassment itself, what the law says is that, you know, if treatment of a sexual nature is unwanted and it creates and intimidating hostile, offensive, or a degrading environment for the employee, that amounts to sexual harassment. So it's about the nature of the employee and how the employee feels as a result of the harassment that you're looking at.

And certainly if the environment itself is in the workplace and it's creating that aspect of harassment, then certainly, I think that you could include this associated harassment with it.

Scott: So there's nothing in there that actually says that you directed it at an individual.

Seamus: No.

Scott: It's whether advertently or inadvertently you create a hostile, etc., environment. That's enough to constitute harassment.

Seamus: Yes. And probably the leading case in terms . . . it's an EAT decision from England, the case of Moonsar v Fiveways Express Transport Ltd. And this was a case where there were male employees in an office that were viewing pornographic images. Now there was a female employee who sat close by and she wasn't involved in viewing or she wasn't . . . they didn't turn their computer screens around and say, "Look at this". They didn't make any advances or anything to this employee, but the employment tribunal held that essentially that this amounted to sexual harassment. So the fact that these male employees were looking at pornographic images in her office, in her working environment, that was sufficient.

And if they go back to the definition there, you know, it talks about it being intimidating, offensive, degrading and it also mentions hostile, but you can imagine how a female employee would feel during those circumstances where they're simply just looking at images on screen.

Another case had come out, and this was about, you know, only the person towards whom the behaviour is directed can bring a sexual harassment claim. The basis of this were that it was perfectly possible for someone to claim harassment when the offending remark or action wasn't directed at that person themselves.

Now the specific case related to the woman that overhears a remark and the tribunal found that they could bring a sexual discrimination case. But there was a case then in England, it was an ordinary tribunal case that wasn't appealed, of Mrozinski v Q Medical Technologies Ltd. And this was an unusual case whereby there had been two male colleagues that were re-enacting a scene that was a love scene from a film.

Scott: It was "Ghost." Be honest, Seamus, it was "Ghost." And it was a particular scene that involved clay.

Seamus: Yeah, something along those lines. Yes. I know of the film. I've watched bits and pieces of it, but I've never watched the film entirely so I can't say too much. But I am familiar with that scene because it's been on TV enough times.

But the male employee did this and it was all that the female was feeling sexually harassed as a result of it. The employee brought a claim in relation to it. The tribunal did find that the circumstances of the scene itself and of the male employees re-enacting that wasn't harassment.

But interestingly, what they did say was that it was clear that the manager did have, from the other circumstances of the case, a predilection for innuendo, was what the judge found. They made an award in favour of the employee for around £2000. But it was clear from those that the innuendo had been made. It wasn't directed at the employee, but it was enough for the employee to feel that she was feeling harassed as a result of this.

I suppose the other side of query really does bring me onto if anyone knows the during the week on BBC as well, as you just mentioned, that there was an interesting piece on BBC in relation to Ted Baker, the clothing designer, which is interesting. Ray Kelvin is the owner of that company and in fact it's just a brand name that they use as Ted Baker.

But there was a requirement within that office that this Mr Kelvin worked in. He liked hugs and he would request in the morning when he came in that he would hug all of the employees. Now some of the employees viewed this as just a general kind of he was a nice guy, he liked everybody.

Scott: Just tactile.

Seamus: He wanted to give them a hug. But a lot of the employees were really uncomfortable with it and there's the case on-going in relation to that and an investigation has been commenced internally by Ted Baker itself.

But it's interesting that what would seem in some ways the appropriate way to meet someone in terms of a handshake, he didn't like this. And specifically Ted Baker have said that even if it was a customer, a client, the supplier, whoever he met, he always greeted them with a hug.

Now there seems to be undertones in that case whereby some of the staff are saying that the hugs would move on to a kiss on the cheek or a massage while they were sitting at their desks sometimes and that made them feel very uncomfortable. But it's an interesting one that was just flagged up on the BBC this week. So if anybody wants to take a read at it, it's interesting from an HR point of view.

But the other side that struck me about this idea of harassment was in and around the fact that how these should be dealt with appropriately, and I think that the best way is . . . I mean, often there can be jokes, there can be comments made in an office place or in a factory, wherever it is that you work, and you're not always aware of everybody's personal circumstances. You're not aware if they have siblings that are suffering from disabilities or have protected characteristics. You're not aware of their parents or their love ones that they have. You're not always aware of this.

But equally, you know, if you're feeling that this is inappropriate as an employee, the best way is probably to take out a formal approach initially and speak to the person and say, "Look, I understand. I get that you're having a joke. And maybe that is your view, but I'm just letting you know that I find that offensive and I find it harassing, and please don't make those comments in my place or my workplace."

If that isn't sufficient, or sometimes the person if not comfortable with that, they might approach HR and that may be a way for HR to try to resolve the situation. If not, I think you're going end up down a grievance route, and that's an option for the employee.

But if you look at the LRA Code of Practice, which I always go back to, it does recommend that these things are tried to . . . try to deal with them informally or use the mediation process or something like that to try and resolve it, to work out in terms of very much this expansion of harassment in terms of the associated harassment they held by.

Q: Is it acceptable for employers to remove email system access for employees who are on long-term leave, including maternity leave, sick leave, career break, etc.?

Scott: Okay. That one and one of the first cases you mentioned there dealt with electronic instances and IT and such. This one that we're going to move on to is an email system and access to employees on long-term sick leave. So is it acceptable for employers to remove email system access for employees who are on long-term leave, including maternity leave, sick leave, career break, etc.?

There are reasons why an employer would want to do this, mainly around the need to ensure good security. Dormant accounts can be used by bad actors wanting to gain access to a network, for instance. But what are the employee rights, and is there a time limit that employers should wait before removing access, and should they ensure employees are sent any relevant communications, such as promotion opportunities, changes to benefits, company announcements, etc., if direct access is removed?

Seamus: This is an interesting question. I suppose there's not straightforward answer to it. I suppose we're dealing with long-term leave and that includes maternity, sick leave, and career breaks. Certainly, I can understand there would be many a good reason and that's certainly a reasonable stance from an employer who would wish to cut off access, either remote access or access to the intranet or emails while there's an employee out on long-term leave.

You know, certainly with GDPR coming into effect this year, we've all had to revise our policies and look at our policies in terms of data security, and one of those issues would be that, you know, if you have an employee that is out on long-term absence, is there a risk that they are maintaining access or risk that there could be a data breach?

Everyone is working off of a mobile phone now with access to email and possibly other apps that take them into systems within the workplace. I suppose it's that aspect of feeling anxious about the person that's out of the office and maybe feeling that there's a loss of control there, but equally there's a number of employees that don't have an office base, that they work remotely every year. So there certainly has to be a balance in relation to it.

I think, you know, taking into account the GDPR regulations and the guidance that we've received recently, there is an onus on the employer to ensure that they are, you know, being proactive, that they're taking steps to ensure that there are no breaches.

Have a look at the case law in relation to this. Certainly there are clear examples where you would have concerns. If you have an employee that is aggrieved on their last day of work and, you know, there's an issue that arises . . . they go out on sick leave and they've maintained their sick leave period for a lengthy period, you're going to have concerns about that employee and what potential damage that employee might do.

I mean, if we look back at some of the prior cases that we've looked at over this year, specifically in relation to GDPR and the data breaches, if you look at the Morrison's case where the employee took data off the system and sent it to journalists, you know, there are risks with an aggrieved employee out on sick leave and it may be that it's entirely prudent and appropriate for you to remove their access.

Equally, you might have someone out on long-term sick leave and they're suffering from stress at work. You can get a medical report or it could just be common sense to say that this person should not have access while they're off on sick leave because they're going to access the system to try and work, and really the time off is required for them to get fit and get better and convalesce if they need.

Scott: It's a little bit different if you move into maternity, for instance, because generally, people are not aggrieved. But at the same time, they're off. They're absent. I get about 100 emails a day at Legal-Island. I'm not going to get pregnant, but, you know, if I get 100 emails, 50 emails a day, I've got 250, 500 emails every week. If I'm off for 9 months or 12 months on long-term sick or maternity, you know, I'm not going to be looking at them. You wouldn't expect me to be looking at them.

So you really have to have that conversation with employees, whether they're off on sick or they're off on maternity or career break or whatever, what do they want to do? Most people will have a personal account, and it might be when it comes to the things like the notifications, the reorganisations, the changes, they need to be updated on those.

You can certainly have a sex discrimination claim if you don't notify women off on maternity leave that there are vacancies that they might be able to apply, or if there's redundancy issues that are coming up and you haven't consulted with them and so on. Then they would certainly lose out. There would be a detriment there.

So you have to deal with it, but that comes down again really . . . like most of the stuff that we talk about, it's just about having that difficult conversation. It's often not that difficult. What do you want us to do here?

Seamus: The key is absolutely communication. It's having those conversations. If it's a maternity leave period, it's best to have that conversation in advance to say, "What is it that you want to do during the maternity leave period? Do you want your emails monitored? Do you want someone else to deal with them? Do you want to see everything that comes through? What about contact during that period? How to you want us to make contact with you?" Certainly the easiest way you would think would be use the private email address if they don't want to access their work emails during their maternity period.

Scott: There are some periods where you wouldn't even give them that option. So for instance, if somebody is off, you would expect the replacement to deal with all their emails on an on-going basis.

Seamus: Absolutely.

Scott: So generally, you wouldn't get access. You certainly wouldn't be getting all of the emails normally. So it may be what you're saying is, "You will not be getting them because we've got someone who's going to be taking them over". So your technical support would redirect the emails to an account where they can be dealt with.

Because from a business point of view, you can't have somebody off, it doesn't matter, for any length of period of time with customer's emails coming in and nobody dealing with them. A sick employee is not dealing with them, the absent employee is not dealing with them, and there's nobody in work because they got somebody else. So you will have a system, and that's really about taking control at the start under the system.

Seamus: And it's just making sure that any employees that are absent are kept up to speed in terms of, you know, jobs that become available. Even if there are redundancies, they're making sure that those people are not forgotten about just because they're not in the office.

There's an interesting case and it's an EAT case from England of Chawla v Hewlett-Packard. And within that case, certainly the EAT . . . and this was an employee that was off on long-term sick leave that was benefiting from permanent health insurance. The sick leave period had been quite lengthy, but the employer made a decision on a security basis to remove access to the company email, but they didn't put any are there alternative reasonable adjustments as to how the employee would access information about the company and what was happening.

And the employee missed a number of key dates in terms of share purchases and things like that, that were on-going. Now the tribunal in that case did find that it was perfectly reasonable and it was fair for the employer to cut off the access, but they found that there was disability discrimination. Mr Chawla did suffer from a disability, one of the reasons for his absence. And because there hadn't been these adjustments put in place to keep him up to date, and because he had been treated differently than other employees, he had lost out on a number of occasions. They did find that there was discrimination in respect of it.

So it's just important to think to communication is key, communication before, communication during, and communication coming up to the return as well.

Scott: Okay. Thank you very much, Seamus. We're going to be moving on to permanent health insurance in a moment.

I'm getting one or two messages coming through that we've been cutting out. Rest assured we are recording this and you will be able to listen back, but preferably you can stay on and it's not causing you too many problems. We'll keep going anyway. I think there's an issue with part of the software updates that are coming through on this particular system, but as soon as we're here will keep broadcasting and hopefully you'll be getting enough of the information to keep you up to date.

Q: A member of staff has been absent on sick leave for the past three years. We have not been in touch with the employee on a regular basis. We were recently audited and advised to let her go. How do we handle it?

The third question we're going to deal with, Seamus. A member of staff has been absent on sick leave, still sickly, for the past three years. She has been able to access a generous PHI, permanent health insurance package, and has continued to accrue annual leave entitlement and generous pension contributions and pay rises. Unfortunately, our HR team has not been in touch with the employee on a regular basis. We were recently audited and advised to let her go. Please advise on the best way to handle this issue.

Seamus: I think on first blush of the question, the concern was really around the fact that there hadn't been regular contact with the employee, and obviously that's recommendable that when you have an employee out on long-term sick leave, there is still contact made. We've just talked about the various things that have to happen.

But also just in terms of welfare meetings, keeping up to date and appraised that's how the employee is, and looking at those different things in terms of, you know, are there alternatives that can be made to get the employee back into work and things like that.

So we want to maintain the contact during the period and certainly I can understand the frustration for the employer. You have an employee that is not in work, yet they are benefiting from, you know, pay rises and things that are happening here, which probably aren't impacting them because they've been off for so long, but there's obviously the idea that the holidays are still accruing during the year. Now that wouldn't be the full, you know, standard 28 days. We're looking at the 20-day holidays that the employers are obliged to provide under the directive.

You know, the employee is going to be able to make an application during the year while they are sick for their four-week holidays, and that is something that the employer is going to have to provide. And you can certainly understand maybe an employer's frustration on this.

Now the payers in these specific circumstances, you've maybe had the auditors come in and they have said, "There's an awful lot of money being spent out here without this employee being at work. This is three years. You need to get rid of them. You need to move on here in terms of it".

The risk, whenever you really think about this question, comes down to the fact that the employee is benefiting from permanent health insurance. And the basis of that is, if we think about it, this is permanent health insurance. There's an anticipation that employee is going to be permanently sick.

And there are some cases whereby the employer has taken some decisions to terminate and dismiss the employee from their employment and where the employer has brought a claim for breach of contract on the basis of saying, "My dismissal is entirely unfair, because as a result of my dismissal, I'm no longer an employee. I'm now no longer entitled to PHI".

Scott: Yeah. It tends to be a condition of all the PHI agreements that you have to be an employee, and if that's terminated, you lose your entitlement to this protected salary throughout the period.

Seamus: Now, there is obviously risk on both sides of that for the employer. You know, the employer is probably spending quite a lot of money in terms of the contributions that they're having to make because you can imagine the longer the employee is off and the more money the insurance company is paying out, the premiums are going to be increasing every year in terms of that. So it leaves employer in a difficult position. They perhaps feel they are paying a lot of money, that they're losing out here because the employee is not at work, and the easier way is just get rid of them.

If they dismiss the employee and even if they do that fairly and there's no claim for unfair dismissal, if you get that far, you're still potentially faced with the breach of contract claim, as a number of these other claims have happened. So you need to be careful with how you deal with it.

I think it really is important to take legal advice for these sorts of circumstances. You're going to have to go back and you're going to have to carefully consider the terms and conditions of the private health insurance and look at the contract of employment that's in place as well.

The holidays are interesting in that, again, I think it's important to go back and look at the wording contained within the PHI. Is there double recovery happening there in relation to that? The insurance company, do they have something specific within their terms and conditions about the employee benefitting from holidays? And then where do we go with that versus what the statutory position is in respect of the entitlement? So it's certainly an interesting one. It's worth flagging up.

That's not to say that there can't be a dismal that will take place. Certainly, I think it would be unfair if you were to dismiss as a result of the fact that the employee is in receipt of permanent health insurance.

But certainly, within this year and in my office, not myself but Hannah dealt with a case whereby the employee was in receipt . . . had a period of maternity leave and then was on sick leave and was in receipt of, I think, around 60% of her salary. So you can imagine that there were aggrieved parties from the employer and insurance company in respect to that, but ultimately the place of work was closing, the branch was entirely closing down within Northern Ireland and there was a redundancy situation that arose.

And so, the reason for the redundancy . . . actually, the reason for the dismissal was the redundancy, and on that basis it would be very difficult to bring about a breach of contract claim because there is justification for the dismissal in that sense.

Scott: It's not related to sickness?

Seamus: It's not related to sickness. That's key. Or alternatively, we find that the employee was in fact acting fraudulently and was taking the sick pay but was in fact fit and was working somewhere else. You know, you would have grounds in that sense. I don't want to put it out there that you're stuck with this position, but certainly it's one a flag up and there is a risk and a liability for employers there just to say, "Let's just get rid of them".

Scott: And then specifically on those more complex ones, you know, we're not just trying to drive business towards Seamus, but, you know, some things are just so complex that you really have to take legal advice. The cost of dismissing an employee who's on permanent health insurance could well be that they end up getting that compensation from the employer as opposed to the insurer until the would've reached retirement age or whatever it says under the term of the agreement. So just on that one, folks, take legal advice if you sent that question in.

Q: Does probationary period law and practice apply to staff redeployed within the organisation for ill health or an organisational change?

Now let's move on to the most popular topic on Legal-Island search website apparently, our most often searched topic, and it's probation, believe it or not. Does probationary period law and practice apply to staff redeployed within the organisation for ill health or an organisational change? We have an employee originally on a 12-month fixed-term contract. Initial probationary period was not confirmed and probation was extended by three months due to various behaviours.

Within the three-month extension, the individual went off on work-related stress. The extended probationary period wasn't confirmed nor was it terminated due to the absence. On return, we offered a further three-month fixed term contract for further review and opportunity. The manager had also changed at this stage. This is going well so far.

There are still behavioural concerns and we are meeting regularly to review performance. At the end at the fixed term, which will now be 15 months, do we just advise we can no longer extend the contract or do we need to go through another process?

Seamus: Well, we're dealing with a temporary worker here. And there are two interesting factor actors. One, we're dealing with a temporary worker and we're dealing with now a temporary worker that has over 12 months' continuous employment, except there was a period of sickness but there still is continuous employment here.

So my advice in relation to this is that we have to remember the temporary worker, for all intents and purposes, should be treated in the same way as kind of a normal employee is treated.

The bottom line is another temporary worker has been usually brought in to do a specific piece of work or a specific job. It's not apparent from the question here whether or not that job is at an end or whether it's completing or whether there is a decision just made that this employee is not competent or is not satisfactory.

But legally, the position is you bring the employee in on a temporary basis. They're there to do the role. They're there as long as the role is required. A different scenario if their role is ceasing and you can bring about an end to the temporary employment as a result their role ceasing.

But the reality here is I think what you're looking at is terminating the temporary worker's contract and then possibly re-advertising for the same role again, and that's going to create an issue for the temporary worker because the temporary worker is going to look at that and say, "Well, that job is still there. The job that I was brought on to do is still there and I'm entitled to that". And you could be looking then at some form of claim into the tribunal.

Now I suppose that the next stage after that then, really, is what do we do about this the temporary worker? My view is that we need to be aware and clear that's the 123 procedure, the statutory disciplinary and dismissal procedure, will apply to the temporary worker. So bringing about any termination, you're going to have to go through that 123 procedure.

Scott: It doesn’t matter the temporary . . . unlike in the GB where, A, they need two years' service to claim unfair dismissal and, B, the fixed term contract doesn't apply under the Acas code, the equivalent that they have over there. In Northern Ireland, a fixed-term contract, even if it were being terminated normally, if it's over the 12-month period would be automatically unfair if you don't go through 123.

So you've got to go through that and you've also got to be honest with this employee. So if you're getting rid of them because the contract's up, there's no longer a need. If it was initially 12 months, maybe it's been extended, 15 months is enough. You've got to say this is why you're doing it so you don't replace, or you've got to say, "This a performance issue. You haven't come up to the mark".

Now ordinarily, had this been done correctly, that would have been done during the probationary period. "You haven't met our standards. That's why we're getting rid of you". You still go through 123 even though it's less than a year that would be advised. But you say, "You're going because of a performance issue, capability, whatever. You're incapable of reaching our standards".

In this situation here, they may have more than one year of service, they are entitled to be taken through the 123 or it's automatically unfair, and there's an uplift. So really, you may be required to go through . . . because they're not really longer on probation, you may be required to go through your performance dismissal procedures or your capability procedure or your disciplinary procedures, and that means a series warnings.

Seamus: Yes, absolutely.

Scott: Potentially.

Seamus: I would've thought . . . I mean, there's no mention of it here, but I would assume that there is some sort of PIP process or capability procedure in place in order to deal with an underperforming employee, which is what you're dealing with here. And if that's not done properly, you know, the risk is and the liability is always that the employee has the right to bring the claim to the tribunal.

I always feel that it is better to just be upfront and honest with the employee if there are issues there. Let's deal with them. Let's try to get the employee back on track. If that fails it might be at the point of looking at dismissal.

Scott: There are some benefits to the employer in this one. There should be records there. They've extended it for a period. They must have extended it because the fact that . . . They say there's some kind of regular discussions here, so you may want to move not on a little bit quicker than it's been done thus far.

But the bottom line is at the end of the day, when you're bringing the person in, you've written to them saying, "Your job is at risk", you have the hearing, you give them the right to appeal, that's your 123. You have to move them into the position where they have all of the evidence, and there should be no doubt, I suppose, that there is a possibility and it shouldn't be a surprise if this person loses their job.

Seamus: No. I mean, they see that there have been these periods the absence and that's just something that the employer is going to have to manage in case the employee does go back . . .

Scott: Go off again.

Seamus: . . . off again. You're going to have to manage that through occupational health and dealing with them that way. So it is a difficult one. It's a tricky one, but the risk would be substantial otherwise.

Q: Please would you clarify the minimum procedural action that an NI employer in the private sector should take when dismissing an employee with fewer than 12 months' service or less than 12 months' service who has actually passed their probationary period?

Scott: Let's stick with probation. I've got another question in here. Please would you clarify the minimum procedural action that an NI employer in the private sector should take when dismissing an employee with fewer than 12 months' service or less than 12 months' service who has actually passed their probationary period? I refer to a case which does not involve discrimination or whistleblowing, but what are the risks for an employer who takes a more hire-and-fire approach in these circumstances?

Seamus: This is a query that I get on a fairly regular basis in terms of I'll get a call from an HR practitioner or from a client saying, "They're not here the 12 months. Can I just get rid of them?" And the difficulty here, the difference between this question and the last one, is that this employee has been through their probationary period and has passed it. So something has gone awry between usually month 6 and month 12.

My advice always now to clients is that you should always follow through and deal with it via the 123 procedure in any event. My experience tends to be that in circumstances where the employee doesn't have the qualifying period of the 12 months under the Employment Rights Order, they will bring a claim on the basis of discrimination, health and safety, or whistleblowing.

I know that the listener here has said that there aren't any issues in respect of discrimination or whistleblowing, but the employee will try to bring this claim in and under the covers will try to access getting their claim through the door by almost . . .

Scott: Could be a health and safety, it could be a try to assert a statutory right. It doesn't have to be whistleblowing.

Seamus: No.

Scott: There is any number of issues.

Seamus: No. There's a number of issues. And there's an availability for these claims to be brought in the back door, and once they're before an employment judge, they can take legs. That's the risk with them.

You know, I've had a number acclaims where at the start of the claim I had thought, "What a nonsense. This claim is just going nowhere". And, you know, we've gone hard in terms of our interrogatories. We've got all of our discoverable documentation in, but there's something that just clicks with the judge whenever you're at the hearing and it gets legs.

And as soon as they have it clearly attached to one of those heads of claim, whether they've got the 12 months or not, if you have less than the 12 months, you're at the same risk essentially. You have the same risk of findings in terms of loss in both your basic and your compensatory and also in relation to uplift for failure to follow the statutory procedure. So the real tough part of the legislation is if they do get it in and get it under, you're still looking at . . .

Scott: The potential uplift.

Seamus: The claim at the same value essentially.

Scott: Clearly, if you don't use it, you failed to follow the procedures, and if there's a valid claim attached, it's a penalty kick for the employee. It's automatically unfair for a start, but any other awards are going to be uplifted potentially by 50%. So if tough not to go through 123 and have a fair procedure.

Seamus: My view on it is that if you don't go through the procedure and you have the paperwork in place, you're leaving yourself open to unanswered questions by a tribunal. If you have it in writing and you have a process followed, you can simply say, "Look, this is the process that we had. This is what we dealt with at the time. Here are the clear written reasons for the dismissal. It's got nothing to do with whatever protected characteristic or whistleblowing or whatever it is that they've got". You know, you followed up in writing. It's all clear. Otherwise, you leave yourself open I think.

Scott: Yeah, I think there's an HR angle. We discussed this before when we came in here. Really, if you want to be seen as a good employer . . .

Seamus: Yeah, the hire-and-fire doesn't work. Not in this day and age.

Scott: Not in this day and age especially with social media and millennials chatting to one another. You don't want a reputation as somebody who doesn't play fair by employees. So for all those reasons especially, use the 123.

Seamus: You cut your talent pool if you're seen at as a bad employer.

Q: Is there is such a thing as age discrimination in relation to young candidates in our recruitment process? The recruitment process was neglected, and as a result, an older less experienced person got the supervisory position.

Scott: Okay. We're going to break away. This is the bit where Seamus starts to sweat. There's a question in the chat box here. Is there is such a thing as age discrimination in relation to young candidates in our recruitment process? Well, the answer is yes to that one. We know that.

The recruitment process was neglected, and as a result, an older less experienced person got the supervisory position. We don't have much detail there. But the bottom line is it comes down to following your procedure because if somebody on the face of it doesn't have the same experience, qualifications, whatever as a person who didn't get your job, and there's some kind of protected characteristic difference . . . in this case an older worker got it rather than a younger worker. The younger worker seems to have more experience or may have better qualifications. It's for the employer just to justify that.

Seamus: Absolutely. And that's the key with those discrimination cases, is that there's a level that the claimant needs to bring to the tribunal and get over to be able to substantiate that there are questions here to be answered, and for the tribunal to say, "Yes, I see the potential here", and the justification, the baton passes over to the respondent.

I've been on the other side of the table in those cases where you thought it's going nowhere, it's passed over to the respondent to justify the reasons for their treatment and the reasons why it has been, you know, less favourable. That can be a very tough position to be in where you have genuinely made mistakes in terms of your recruitment process. It can be brought for someone that's at the older end of the scale equally as it can be brought for someone at the younger end of the scale.

Scott: It doesn't mean they are going to win, but if they do win of course there's no limit on the awards in Northern Ireland unlike the Republic of Ireland where there's a limit of €13,000 in a recruitment claim, and this one here is slightly different.

Q: A member of staff has been off sick for the entire direction of the school holidays for two years running. She was off work because she was suffering from depression. If this pattern of absence continues for a third year, can we take any action, or is this something we just have to accept ask coincidental?

Okay. Let's move on to another question we've got previously. And I think this might be our last one. It's a very interesting one. A member of staff has been off sick for the entire direction of the school holidays for two years running. She was off work because she was suffering from depression. If this pattern of absence continues for a third year, can we take any action, or is this something we just have to accept ask coincidental?

Why do you think this person is off, Seamus? Give us a wild guess.

Seamus: Well, look, what we know in relation to this is that there appears to be an issue around school holidays, which may be red flag. So if there are issues with childcare with this employee and they may be taking a position that just can't attend. They're putting in a sick line during the holidays to say that they can't attend.

There's a clear pattern here. We have the two years in a row, and if we're talking about summer holidays, this HR practitioner, if it is an HR practitioner that sent this in, is on the ball thinking third year is coming up. Is this going to happen again and what can I do about it?

Certainly, I do think that on the basis there is a pattern, there is a situation to be tackled and it needs to be dealt with. What you would be concerned about is that there would be a precedent that would be start to set and the impact on other employer that are thinking to themselves, you know, that they are acting fraudulently here. Either they are getting SSP during that period or they may be getting full company sick pay and they're taking advantage of the time whenever their children are off probably due to childcare issues or whatever it is. But it'll leave others feeling demotivated as a result of that. So it does need to be dealt with.

I mean, the obvious way to look at it is to say, you know, when it happens, get them to occupational health. Get a doctor's report. You know, is the illness genuine or are there circumstances that the company can assist in terms of trying to resolve the issues?

I think the smarter way to deal with this is you have the information here. You have an opportunity to take steps before it happens again, and certainly these can be informal discussions at this point, is that you approach the employee and say, "I've picked up on a pattern. You know, school holidays, there's depression arising and you're absent from work", and talk about what is the real reason here in terms of the absence.

It might be sufficient enough just to draw it to the employee's attention and then for them to say, "Well, I've got away with it for two years. I'm not going to get away with it any further. They're on to me". Or alternatively, if there is a really frank conversation where you say, "Are there childcare issues for you during school holidays?" and if that is the reason for it and if that ultimately is the reason, there are steps that the employer can take in order to perhaps resolve or alleviate those issues.

If this is a talented employee, if this is an employee that works really well for 10 out of the 12 months, if we look at it maybe as a summer issue in terms of those holidays, you know, is there something that the employer can do in order to facilitate that? Are we in a position to say, "Look, let's take your annual salary and let's work that out over 10 months' work rather than 12 in order to facilitate it"? You know, have those discussions with the employee and see where it gets you.

I think if the employee is difficult about it and denies it, you're going to be backed into a corner and you're probably going to have to go down the route of either saying to them, "Look, we picked up on the pattern. If it happens again this year, we will be taking action in terms of we will be sending you to occupational health to have it investigated".

Scott: It seems unlikely that somebody would . . . I might get a bit annoyed if I had to look after kids for two months, to be honest with you. But it would seem unlikely that somebody actually gets depressed for two months, gets better without any action, and then comes back to work. So if it's genuine, and it may be, but if it's genuine they've been carrying this depression on through the workplace and it builds up and something happens coincidentally.

But if it's not genuine, then effectively they are defrauding not just their employer but they are impacting on other employees. It has to be dealt with. I can understand why an employee would maybe feel trapped, "The only thing I can do is this". There may be things we don't know about, pressures at home people are putting them under to say, "Look, you've got to do this because this is the only way we will get through this summer", or whatever. You don't know unless . . .

Seamus: Exactly.

Scott: But it still comes back to what we've been chatting about all the way through. You need to chat to people about these issues. You've got to take the bull by the horn have been difficult conversation and get through it. Because if you just ignore it . . . this happened twice. If you ignore it, it's going to happen a third time and then it's going to be a fourth time.

So no, you don't have to accept this pattern. You do have to have that conversation with somebody and say, "We think there's a pattern here and we've got some concerns". We certainly got concerns about whatever is happening, we've got an employee who's getting sick. Even if it's genuine, they're getting sick once a year for a big chuck of their working time.

So thank you very much, Seamus. Thank you to everybody for listening. That's our last broadcast of the year. We will be back not on the first Friday in January but the second Friday. That will be the 11th of January, again at 11:00. We'll have all those sound problems sorted. In the meantime from myself, have a lovely Christmas and a Happy New Year when it comes. Cheerio, everyone. Bye-bye.