In this month’s webinar, Employment Law at 11 sponsored by MCS Group, we welcome Seamus McGranaghan, Director at O'Reilly Stewart Solicitors and Rolanda Markey, from the Learning and Development team at Legal Island. In the recording, Seamus and Rolanda are discussing the legal and contractual issues surrounding hybrid working as many people start to return to the office and others are reluctant to do so.

They will also look at considerations around probationary periods and, following the recently reported case of an employee who was forced to express milk in the car park and toilets, look at what provisions employers must make for breastfeeding employees. 

View The Webinar Recording and Transcript below.

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The transcript

Rolanda: Good morning, everyone, and welcome to Employment Law at 11 sponsored by MCS Group. MCS help people find careers that match their skillsets perfectly, as well as supporting employers to build high performing businesses by connecting them with the most talented candidates in the market. And if you're interested in finding out how MCS can help you, then head over to MCS Groups . . . sorry, www.mcsgroup.jobs. I want to put an extra S in there. I really, really do.

My name is Rolanda, and I'm part of the Learning and Development team at Legal Island, and I'm joined today by Seamus McGranaghan, Director at O'Reilly Stewart Solicitors. And if you're new to our webinars, welcome. If you're a regular, then in this month's webinar, we're going to discuss some of the legal and contractual issues around hybrid working. As many people are starting to return to the office, we're hearing more and more that employers are wanting people to come back in some sort of format. We're also going to look at some considerations around probationary periods, which is always a very popular topic on the Legal Island hub. We're also going to look at breastfeeding following a recent case of an employee who was forced to express milk in the car parking toilet. So we look at that and what employers must do in order to facilitate breastfeeding employees.

Poll Results

Before we do that, we have a couple of poll questions that we're going to ask you and they'll just pop up in a wee second. Katie's working in the background here to get the polls going.

Good morning, Seamus. Just while we get that organised, how are you?

Seamus: Morning, Rolanda, I'm good. Thanks. I'm struggling to believe that we are at the start of May and that our next webinar will be the start of June. So things are just flying on really at the minute, aren't they?

Rolanda: It really is. Well, actually, our one in June is going to be the 11th of June because the first Friday in June is the Jubilee bank holiday.

Seamus: Yes. I don't think we'll have any complaints about that. Two days off, Thursday and Friday.

Rolanda: No, absolutely not. Absolutely. I'm delighted about it myself. Okay, so yes, poll question there. So does your organisation support a hybrid working arrangement? So if you send your results in , and I think can close that one there, Katie. We've got quite a lot and end that. So many things on my screen, let me move some things. So yes, 85% of organisations do support hybrid working arrangement. That's interesting, isn't it? That's quite high. I'm surprised.

Seamus: Yeah, it is high. I was just thinking just in relation too, I mean, there's obviously some businesses and organisations that where it's just not possible to work anywhere but at the place of work. You know, if you're in hospitality, for instance, it's very difficult for the vast majority of those employees that they need to be there and certainly the service industries as well where that has to happen, but it's good to see. I mean, like, I think that that definitely is a reflection of the current position and what has been ongoing. I know that we're going to talk a little bit later on, Rolanda, about the implications of the time that has passed really, if we go back to March 2020, but really this working from home idea has really took significant steps at that point. But 85% is high and I suspect that the no's in the 12% are probably for those organisations or businesses that simply just cannot facilitate any work outside the place of work.

Rolanda: Okay, next poll question then. So if your organisation was working remotely, have you experienced any resistance from employees in returning to the office? So if you have been 100% remote, you're looking to come back to more hybrid, are you having resistance from people saying, "I don't really want to come back"? And the results are coming in to that and that's quite interesting. Looks to be quite high percentage of people are experiencing some resistance from employees. We can maybe close that one there, Katie. So we're seeing about, yes, 69% of our listeners today are experiencing a bit of resistance from employees. And we'll have a question around that, so we'll pick out that one. And that's probably not that surprising.

And we'll just take the last poll question and then we'll go on to hybrid working, Katie.

Okay, so if you have . . . the other area we're going to look at today's is probationary periods. If you have a probationary period in your organisation in your contract, so is it for less than six months? Is it six months, or is it for more than six months? Just to get a rough idea of what the norm is out there. You can see the votes coming in and six months appears to be the kind of norm for that. Would that be your experience, Seamus, with employers that you would assist in their contracts and things like that?

Seamus: Yeah, it does tend to be. I mean, there is no . . . I mean, there isn't there any sort of legal or statutory implications in relation to probationary periods. But if you look at the Labour Relation Agency's advice, I mean, they do talk about probationary periods. They don't specifically say about a timeframe. But what you're looking at really is it's a reasonable timeframe to give the employee an opportunity to settle into the role and give the employer an opportunity really to have some sort of sensible assessment in and around the employee, how the employee is fitting in, whether or not the employee is competent and capable of doing the role. And it gives the opportunity for both parties to look at those sorts of circumstances.

So yeah, six months would certainly be the general. Sometimes you'll see three months but the usual position within contracts is built within the six months and maybe just later on, we can talk about that. We'll maybe talk about the contractual burden in and around probationary periods and maybe the smarter way for employers to look at that, because sometimes it becomes very apparent early on in the initial probationary period, even after a couple of weeks, that the circumstances are just not working out. I often get questions as well, "Do we need to wait till the end of the six-month period in order to try to tackle it and handle it. So it would be good to maybe get some conversation around that as well.

Rolanda: Okay, so folks, if you have any questions, pop them into the question box and we'll take them throughout the webinar.

Hybrid Working

So first of all, looking at hybrid working, Seamus. There has been a lot of conversation. I've heard a lot of chatter about people coming back to the office. And so I suppose the first thing is should employers who have adopted a hybrid working arrangement change the contract to say, "Your place of work is . . . " and address the hybrid working arrangement?

Seamus: Yeah. Well, I mean, I certainly think from even just from my own point of view, where we're based here in May Street. You know, there's quite a lot of government buildings around us with land and property services. And we have a number of other businesses around and definitely I can see. I mean, I've been in the office back in the office from June 2020. And at certain times throughout that period, it has been desolate around this area. And it really does, you can notice it has an impact upon the other businesses in the area, the coffee shops, the shops and things like that that are based. And we're right beside the market as well.

But I definitely noticed specifically after Easter, there's been a real uptake in the amount of people that are out. If I go to the office for meetings, or if I'm going up to the shop, I can see that there's much more people around that everywhere is busier. So I suspect that there has been and I was reading in the paper during the week about a push specifically within the civil service about trying to get people back to work. But we've definitely had a situation where people have been working from home. They've had peaks and troughs with that because we have had some guidance from government pulling back some of those restrictions. And then there's the flexibility around the restrictions. And then we were coming back towards there in October time again, and you could see really running from the summer that there was a pull back in the restrictions and you could see the numbers increasing and I think employers took a cautious approach. Certainly, even and around Christmas, when I think of like Christmas time and some people have returned to the office and there was a question about do we or don't we have a Christmas party? Because the numbers in relation to the virus were quite high.

Things have definitely set with in relation to the virus. I was looking there yesterday and I can see that even hospital numbers now are down to a reduced figure as well, that the lowest they've been in a long time. So definitely, I think employers are encouraged and they have been encouraging staff to start to return to the office. But this sort of new normal aspect of hybrid working is no doubt and for the fact I think through the pandemic we have had the benefit of the ability where you are doing a mix of days in the office, or in the workplace and days at home. And I think even the routine in how people are working has very much changed as well. And I think the important point, Rolanda, is that that has worked around the people's lives, it worked around their childcare, it has worked around the dependency issues that they may have when they're happening and vulnerable relatives are mothers and fathers and things like that are young children within their household.

So it's definitely built up and along with that, there has been expectations have arisen then for employees in relation to, will this continue or won't it? Certainly what I would say is I do feel that we're at a point now where if it hasn't been something that has been written down, it's an apt time to start to get some sort of written terms and conditions down now. A big focus for this for me, when I'm just thinking about it is, I mean, it's the talk of custom and practice. What is the custom and practices? And that's a difficult one as well, because although we've had custom and practice as possibly being in place from March 2020, we have had a very reasonable and justifiable reason for that which has been the pandemic. We seem to be at a stage and, you know, touch wood and cross fingers and everything else that we have that we are very much moving out of it. You do read about these things where they say, oh, there could be a new version of the virus that that comes along, that changes the dynamic yet again, and you don't know what's down the line. But certainly at this moment in time, it does feel that progressively from even this time last year, it has been safer to return to work and that there has been an expectation for employers to do that.

And it doesn't surprise me whenever we look at that second poll that there has been resistance from employers or employees about returning back to the office because I think from an employee's perspective, they can see that it has worked for them, they can still do their job, that there hasn't been a dip in performance, that there hasn't been a loss of revenue to the business, and that they can manage to do work from home. But it does bring about other consequences and issues as well.

But I think at this point in time, whenever we're thinking about having hybrid arrangements and whether they should be in the contract or not, I think definitely if you are taking on new employees, and if it does appear to be an expectation with new employees that they will have either the ability to work from home fulltime or that there will be a ability to work hybridly, I think it is important that there is something recorded in the contract about how the working week will go and/or how the working weeks might go. Even if it's on the basis of one week in, one week out or a couple of days one week and more the following week. But I do think that that is something that needs to be recorded in the contract. And even if it is just something simple in the contract that says that you will be permitted to work on a hybrid basis, and then that there's maybe something else that is produced in writing between the parties.

Custom and practice can build up and certainly people can say after a period of time, "Well, look, these are my terms and conditions because I've been working and adhering to them and that has been permitted. This is what I've used to and this is what I would perceive now to be my actual terms and conditions of employment. But even whenever you have a situation of people working from home . . . I can see for a lot of businesses, how they can avoid that element of having to build some flexibility into the contract of employment for the employee to work at some point in the office. And I think that there has to be that aspect where you're building in certainly within the written contract to say you'll be permitted to work from home, but you will be expected the attend the office.

And the key thing for me about that is business need. What is the need of the business? And there could be certain times within the year or there could be certain projects that arise where you will say, "No, we need you in the office for the next two weeks," or, "We need an increased presence in the office over the next few weeks." Even with people taking holidays and maybe it's somebody that is in the office that is going on holidays for a fortnight, you need somebody in the office to cover those duties and responsibilities. So it does need to be looked at. I think that definitely there needs to be a term in the contract if it's a new contract.

The more interesting question is for those that are maybe established or have employees of a lengthy nature, have been working from home or maybe have been coming and going as regards the business needs, and where the employer doesn't quite know where they're saying, we need you to return to the office or we want to see an increased presence in the office and you're meeting that resistance. I think now is an important time that you get that down in writing. And I was thinking previously, maybe even go back as far as when Scott was doing the podcast and in and around the time that the Labour Relations Agency did bring out the workplace guidance for hybrid working, which I'm seeing an awful lot of, I have to say, on the socials at the minute. And there does seem to be a push with that. And I'm just wondering is it because there is a lot of queries arriving at the door of the Labour Relations Agency in relation to hybrid working? I suspect that at this moment of time and thinking about the numbers on the poll there, that there may well be a significant number of issues for employers to deal with.

Rolanda: Yeah. So in terms of that resistance, because, you know, I think we've all heard stories of the people, organisations facing resistance from people coming back for, you know, a lot of it can be understandable.

What can an employer do when they're facing that resistance when somebody says, "I don't want to come in two days or three days a week"? How do they handle it?

Seamus: Yeah, well, I mean, I do think that ultimately decisions need to be made by employers on the basis of business need. And I do think it's more than just the employer putting a finger in the air and saying how many people do we need back in the office? I think there has to be a proper review and assessment done in relation to in and around the needs of the business. You know, any tribunal cases that I've ever had where we're talking about redundancies, or we're talking about the business element of an organisation that, you know, the case law is very clear that the business is there to make money and to make profit. That's what it's there for, so the needs of the business are important. And, yes, everybody's employment rights are also very important as well. But if we don't have that business, we don't have jobs. And so there's an element that the business has to be able to function.

 I think that that communication is always key. There needs to be open and transparent communication between employees and employers about the needs of the business and also taking into account the needs of the employees when it comes to possibly working flexibly and whether that's a formal application for flexible working, and what the employer has put in place in that respect. But certainly, where you are meeting resistance, my advice would be try to get an open and sensible conversation in place. If that's not happening, then I think that you're maybe communicating in writing to say what the expectation and the need of the business is in relation to that person returning to work. And again, if that is met by further resistance, you may need to give consideration around to, you know, taking a very flat and factual approach. And that might start at that point where you're taking a firmer approach with an employee right through to the possibility of looking at possible disciplinary action for a failure to adhere to a reasonable work instruction.

I think it very much depends, Rolanda, on the nature of your business. The business that you’re working in and I certainly couldn't say that there's a one size fits all for every single business operation there. But you know, I can see it and our business here in the office, I mean, there are issues arising in the workplace and I can see it from clients and from advices that I've been asked. There are issues arising for this hybrid element of working, specifically in and around people feeling that they're missing out on opportunities, and that that's discriminatory because they're working from home, or they're not in the office and somebody else is getting assigned better projects or given work simply because they're there and they have a presence.

So there's lots of issues that are arising but I think that and, you know, ultimately, again, the employer always has to take a reasonable approach, but I think that you do need to potentially go down the line of if you have a clear business need and you've a clear justification when a person is resisting and saying I'm not return simply because it doesn't suit them, I think that you're potentially into looking the disciplinary side of it.

But I would say that that would always be a position of last resort, particularly as well, where you are an organisation that is unionised. I think it's about engaging with the union representatives because there's push and pull with that but they're generally has to be a sensible view taken in relation to how the business would be able to proceed. And certainly, I think that there are businesses out there that have struggled through the pandemic that they made the most of what they've been able to do, but people are very keen at this point to get back to some form of normality. They maybe see the opportunities that the pandemic has provided. But they also see that parts of the business that have met . . . that have possibly receded because of the inability to have a full team of people in the office and things like that. So I think the employer does need to take a cautious approach, but ultimately where you have those circumstances where an employee is unjustifiably not wanting to come back to the office, that's your recourse.

Rolanda: Yeah. And I suppose as you were saying it's about communications, about communicating why the employer wants them to get back into the office and what they're going to be doing when they're back in the office because maybe people feel like there's no point in coming in and sitting doing the same thing I do at home. You know, it's about using that time more effectively, when people are back in the office. A lot of good consultation work that the employer can do with the employees to try and maybe avoid this resistance so that at least they can say, if somebody's still resisting, after all of that, then they've been justified in taking more stringent measures that you've outlined there, Seamus. Okay.

Seamus:  Yeah. And obviously, just building back into that, all of those issues in relation to the employee may well have a good justification. There could be issues around dependents, there could be disabilities, taking all of that into account as well whenever you're given that consideration.

Rolanda:  And I think that's it, isn't it? Perhaps not, you know . . . I supposed a lot of employers, it's maybe, look, you have to come into the office, you just have to. You need to maybe think about why you want people back and why you're, you know, another as you say, there may be people with disabilities that it really doesn't sit, and maybe it's on a role by role basis as opposed to everybody, you know, being lumped in the same.

Seamus: Yeah, and I think it's that aspect of looking at it strategically. And whenever you're doing your assessment, that you are looking at it strategically, so that I think if you do that, it's a much easier way to present it to employees as to why they would need it . . . why they would need to either return or return on a hybrid basis.

Rolanda:  So say for example an employer has agreed two days a week but needs to increase that and realises that they need people in the office more. They want to return more to traditional. How would they go about that, Seamus?

Seamus: Yeah, well, I think definitely, if there is a written communication being provided, whether it's an updated contract of employment or to staff or something built into the staff handbook, I do think it's always in the employer's favour to have that flexibility built in where they might say, "Look, we're happy to say that it is a three-two split, but there may be times that we need you to come in more than that because of certain projects arising or because of shortness of staff or holidays, or whatever it is." 

So again, fundamentally, and ideally, from a lawyer's perspective, you would have something in writing in relation to that, so that you can fall back and rely upon it. And I think also where you're looking to put something in writing, that you are building around the ability to have that flexibility obviously, and but also for the employees who have an understanding of why that is, and but I think certainly, you know, traditional workplace is an interesting question. There are employees that just prefer to be in work and don't like working from home. I'm one of those sorts of people. I prefer to be in the office than be at home. And I suppose that's getting the balance right. You may have those employees that are there in the office all of the time, and those that prefer to work remotely.

But I think that certainly as you would have an increase in people returning back to the office, I think that there's going to be a difficulty that's going to arise for people that are working remotely and things like if you're having a team meeting, it might not always be the best way of doing it, by way of teams, particularly if you're the only one on the team that's working from home, and you're coming on remotely. And you know, are you getting your voice heard? You know, if your presence isn't there, are you missing out because everybody else is there. There's all of those sorts of issues. And I think like other things that I've had a little bit of experience with, has been where office events have taken place, so the coffee mornings, the lunches, the celebrations in the office for anniversaries and things like that, and people that are working from home, not willing to come into the office but still want some element of participation. And then where there are meetings and it's a strange one because they are coming back and saying I'm feeling like I am forgotten about because I'm at home.

So I think definitely the employer needs to have an inclusive review of all of the circumstances, but the traditional workplace and there certainly may be a push for employers to get back to that. I do think that there's going to be that resistance and it's whether or not employers, how, you know, an element of foresight where they say, "Well, look, listen, if we're reducing the capacity that we need, maybe we could give up an element or a part of our office space, reduce our office space, and work smarter and more efficiently that way." It'll very much depend on what the setup is within the office, I think, and whether or not there . . . I mean, if you have sufficient people in the office that want to be in the office and don't want to work from home and you have other people that want to work from home, and they're happy to do that. You know, it's hard to see what the justification might be in terms of bringing the person or telling them they need to come back in for two days a week every week. You know?

Rolanda: Okay. Yeah. Okay, we could probably spend the whole webinar just talking about working remote working and the story this week about the 20% cut in pay if you work remotely. We haven't got time because of the other topics to look at. So folks, so send any questions you want.

Probationary Periods

Then moving on to probationary periods. So you chatted earlier there about the length of a probation period and most of our listeners would have six months . . . is that and you mentioned the LRA guidance and that, so is it okay to have longer probationary periods.

What are the issues with having too long a probationary period?

Seamus: Well, I mean, certainly, the starting point in this is that some employers will have . . . not all of them, but the majority of employers will have something in the contract of employment that says that the position is permanent but subject to completion of a satisfactory probationary period. And usually that probationary period is used by the employer, they assess the employee's performance, their suitability for the role. And generally, what you'll see as it's written in the contract of employment, so the probationary period will be within the contract of employment. And it can be of a varying duration, depending on if there's a lengthy training period that you have to undertake. So if you're going to work in a bank, you may find that your training alone is three months. And then you're going to have another three-month review period after that. And you can also use it to appraise the employees' performance regularly. And you can look at what assessments they need and what training that they need to get as well. So it very much depends on the role they do.

And as I said earlier, there's no law that governs this. There's nothing written down in statute that says you have to have a probationary period or that you can't have one. And I suppose that what I would say is that probationary period should be reflective of the position to enable both parties to gain an understanding of the suitability of the role for that person. And certainly, I would say sometimes it would be three months. So if you have somebody that's gone into work in retail, if they're going to do work for Marks & Spencer, they maybe have three months probationary period, whereby the employer can fairly much, within the three month period whether the employee is suitable for the role, and that they will probably build in review periods within the probationary period, so they might need to week 4, week 8, and week 12 and do a full-on proper review meeting at week 12 to decide whether or not the employee is going to meet the standards that's required.

But it also is looking at from the other side of the coin, it does assess the employee in making a decision about the role that they want to do, because we know that we get a job description at times, and then when we go in to do the role the job description is nothing in comparison to what the job actually entails. So there is that element. We think around the notice periods as well within the contract of employment that provide for notice within the first year of employment usually or shorter periods of less than a year. But no hard and fast rule in relation to that, but it should be reflective upon the nature of the role and building into any training periods that you have as well so that the employee gets an opportunity to hit the ground running before they're assessed.

Rolanda: Okay, so let's say things aren't going well. The employee's maybe not performing. First of all, it's a couple of questions here.

Can you dismiss before the end of the probation period? And if you do dismiss, do you have to follow disciplinary procedures or statutory dismissal procedures?

Seamus: Well, I had looked at the Labour Relations Agency guidance just to see what I could find on there in relation to because look, traditionally, what happens is somebody will ring me up and say, the person has been here, you know, four months, you know, I'm not happy with them. I want to have a meeting with them this afternoon and tell them that they're being dismissed, and I'll pay them that their weeks' notice pay. And that gives me anxiety, I have to say, from a legal practitioner's point of view.

And then I was happy to see that it does say within the Labour Relations Agency guidance, it does say the case law suggests that regardless of how long the probationary period is, an employee does not have the right to be employed for that full period. And most cases, an employer will have the right to terminate the contract during the probationary period. Now you'll always see that's the wording within the contract. To hire an employee, you must ensure that they follow the . . . sorry, an employer must ensure that they follow the statutory dismissal and disciplinary procedure if terminating a contract of employment during the probationary period. So the advice from the Labour Relations Agency is clear, follow the statutory dismissal procedure if you're dismissing during the probationary period.

The advice that I tend to give to my clients is ideally, I want you to write to the employee. I want you to tell them that you're going to hold a review meeting with them. I want you to set out in the letter the issues that you're going to discuss and possibly provide them with some of the evidence that you have where performance hasn't been up to standard and advise them in the letter that there is a possibility that one of the outcomes of the meeting may be the termination of their employment.

And I tend to prefer to follow that route because ultimately if the employee is dismissed, I would also recommend that the meeting's held and the they issue an outcome in relation to the review meeting, I should say. And that's because you don't need to have your 12-months period of continuous employment to get your statutory rights to bring certain claims. And you can see an awful lot of these on an uptick in the tribunal, whereby claims are being brought for discriminatory issues or whistleblowing matters, for matters of health and safety, where employees will say, "Well, look, listen, you know what happened? I raised a health and safety concern to my employer about a matter at work. On foot of that, they brought me in, they did a review meeting with me, and they dismissed me, and they didn't follow the process because they didn't invite me to the meeting in writing and they didn't offer me a right of appeal."

And the end of a tribunal, a tribunal makes a finding that the reason for the dismissal was the health and safety complaint that was raised, and then the tribunal can look to award in relation for a failure to follow the statutory procedure. So it's always just not as clear cut as saying, other within their probationary period, let's go ahead and dismiss. We have no obligations here. We're not tied. It's not as straight forward as that and certainly not the position for somebody that has less than 52 weeks employment.

Often and just being real about it, Rolanda, often employers will say no, I just need rid of this person now. And my advice is always, "Well, if you do this, you will do it at risk." And I'll give them the advice that there is a risk in not following through on the procedure. So ultimately, I always like to build in the statutory dismissal and disciplinary procedure to that process. And I read judgments on both sides where you have a tribunal judgment that has come back saying, no, the person didn't hold the requisite statutory, I think, the service to proclaim for unfair dismissal and the claim has been thrown out. And I equally read other claims or other outcomes where the claim is not about the dismissal initially, it's about some other matter, but the unfair dismissal gets in under the radar of the tribunal.

Rolanda: Yeah.

Seamus: Because of those other claims. So on a on a cautious approach, my advice is always that you should follow the procedure, at least put some procedure together. And ultimately, if you dismiss the person on the basis that they weren't competent for the role during the probationary period, or that they haven't reached the standard that you would like them to, if you end up in a tribunal and they're making discriminatory claims, what you can do is produce your correspondence to the tribunal and say, "Well, look, we took a very fair approach in relation to the employee and in actual fact, here's the written reasons for dismissal that we provided. And these are the real reasons for the dismissal, not what is alleged in the claim."

Rolanda:  Just to clarify, there's been a couple of questions there. Just to clarify that the statutory procedures, the statutory dismissal procedures is not a right that an employee has, it's a process that should be followed in a dismissal. So therefore, if an employer doesn't follow it, an employee can't take a claim and say, "You didn't follow the statutory dismissal procedure with me." That's not a standalone right. And so just clarify that, there's couple questions about that.

A good question here about disciplinary procedure. So I suppose

if somebody commits misconduct during the probationary period, you know, could you, would you apply the disciplinary procedure as well as your performance review or your probationary review procedure?

Or would that all come together?

Seamus: It would depend. If an employee took steps that were beyond reproach, and that you would automatically say this is terrible, no, the employment relationship cannot go on, the percentage of the risk reduces and my advices might change for the client if they had assaulted somebody out of the blue for no reason, and or that they've been caught red handed stealing out of the till at work. And because ultimately, you could be relying on the actions of the employee resulted in the termination of their employment and you can make that argument at tribunal. But certainly, where there is clear evidence of it, and you know, the advices may change slightly to say, well, look, the risk is lower, because you've got these other circumstances.

I'm always a strong believer in if you're going to dismiss somebody, be clear about the reason that you're dismissing them. Don't try to contrive events. If there's a period of where you're worried about competency and you're going to take a step to have a probational review meeting with if you have dismissed them and a matter of conduct arises. If that's the real reason for the dismissal, that's the real reason. I've too many tribunal cases where the tribunal is scratching their heads saying, well, what was the reason for the dismissal because it creates an issue for the tribunal in their mind of the employer is up to something strange here. So my view is always dismiss for the reason that you're dismissing. Don't contrive anything. Don't try to hide behind it because sometimes employers will say, I think that they . . . we all are of the view that they were stealing, we want rid of them, but we're just going to deal with it on the basis of the fact that there was a shortfalls in the standards of the work because ultimately . . .

Rolanda: Yeah

Seamus: . . . you know, we've all had those cases where you end up in the tribunal and whenever the person is giving evidence they say, well, the real reason for the dismissal was this. And the tribunal will automatically say, well, that's automatically unfair because you never gave them an opportunity to give a defence in relation to.

Rolanda: So in other words, if misconduct happens, and it's quite serious and treat it as a disciplinary matter, and use the procedure accordingly.

Seamus: Yeah. And the other example, just to mention quickly, if conduct was were somebody's behaviour fell below what the expectation would be, certainly you could include that within your review of their work and provide the information as well. You know, you could build that in also. And there's little difficulty with that.

Rolanda: Okay. Quite a few questions. However, we're not going to have time for all of them because we do have another topic. But last question just on probation before we move on to breastfeeding in the workplace, and

Should you offer a right of appeal on a probationary dismissal?

Seamus: Well, the LRA guidance is to follow the disciplinary policy, or the disciplinary and dismissal review. There is an appeal process in that. And strictly speaking, yes, you should be offering a right of appeal. And there are other circumstances again, where you assess the risk in relationship to it and you may decide that you're not going to do that, but it is at risk and you do need to judge those circumstances individually.

Breastfeeding in the Workplace

Rolanda: Okay. Okay, moving on to breastfeeding in the workplace. So for anyone who gets our weekly reviews, you'll read about a case last week reported of a employee, I think she was a teacher actually, who won a sexual harassment case because she was forced to breastfeed in toilets and carpark. So that's a big area to tackle. So what is the law around employers requirements in making provisions for employees breastfeeding at work, Seamus?

Seamus: Well, usually the position is, look, the aspect of breastfeeding arises whenever the employee is intending to return to work. So there will normally have been a period of maternity leave and this is the point where the employee is seeking to return from work. And there are a number of things that the employee can do but initially, the employee needs to advise the employer, should advise the employer in writing that they . . . when they return to work that they're going to be breastfeeding.

Rolanda: Expressing milk. Sorry, may be expressing milk.

Seamus: Yes, that's the better way. And I suppose my starting point is to go back to the start of that, whenever a mother is intending to return back to work, there's a number of things that need to be thought about whenever they're returning to work and wish to continue to breastfeed. So looking around arranging for childcare and maybe having childcare close to the workplace in case they want to leave the workplace during their breaks to go out to breastfeed the child. And then the other aspect is the expressing breast milk so that somebody can feed the baby in mom's absence. And they can ask the employer for flexible working hours that are arranged around breastfeeding times and the needs of the breastfeeding. They can use a mixture of breastfeeding and formula feeding to fit around their working hours as well. But again, before returning to work, they really should let the employer know that when they return that they are intending either to breastfeed or to express.

And legally, it's up to the mother to decide for how long she wishes to breastfeed for. That's not a matter of concern for the employer. There's an EasyJet case which I want to mention to you where they made a decision to say six months was satisfactory. And that moms shouldn't be breastfeeding beyond that. And the courts were very clear of that's indirect discrimination and that's a choice for the employer. And so returning to work doesn't mean that mom has to stop in terms of breastfeeding or expressing milk. But again, written notification should be given in relation to it and what I would say is that employers are required to provide suitable facilities where pregnant and breastfeeding women can rest and they must also protect the health and safety of new and expectant mothers.

There is some advice from Acas on breastfeeding, Rolanda, that I was able to pull down but there's also a good guide for specifically for Northern Ireland in relation to the promotion of breastfeeding for mothers returning to work.

Rolanda: Just on that, Seamus, we have a . . . in our follow-up email, we sent links to that guidance. It's actually quite good link to that, that I mentioned about the breastfeeding teacher as well.

Seamus: Yeah. But the surprising point of all of that is that there is not a great deal of built-in specific wording in the legislation around breastfeeding. It comes under the discrimination legislation, specifically, in around gender on maternity and those sorts of issues. But in England, it's much better in terms of the layout of the legislation because they have the Equality Act that has been updated in 2010 and it incorporates specifically those elements for breastfeeding. In Northern Ireland, it's not specifically within our legislation in that sense, but where you will find it will be within the health and safety legislation and specifically the Health and Safety at Work regulations and the Northern Ireland regulations of 2000 and that incorporates a lot of European legislation as well.

But Article 17 of the regulations say that where a new mother works at night and there's a certain certificate from a registered medical practitioner that she should not be working at night for health and safety of her own and her child. It provides for that. Article 18-1 no action to be expected until the employer has written notification that the employee is pregnant and breastfeeding. And then in the 1993 regulations, it says that suitable facilities shall be provided for any person at work who is pregnant woman or nursing woman or nursing mother to rest. So it talks about the ability for mom to have those rest breaks. Again, if you think about the Employment Rights (Northern Ireland) Order 1996 on the duty to offer alternative work if the current work is no longer suitable. So if mom is saying the work's no longer suitable for me because of my breastfeeding arrangements, there's an element there and then of course, you're protected under the legislation Sex Discrimination (Northern Ireland) Order 1976 and it protects employees from less favourable treatment due to breastfeeding a baby.

And maybe just mentioned that in relation to additional breaks, again, the 1993 regulations do provide that mothers are entitled to rest, including somewhere to lie down but there's no legal requirement to provide a particular environment for employees to express or store milk. Again, it's back to this point that there has to be a safe place for them to do so. But I think it's definitely good practice and it's highly recommended for employers to provide facilities for their employees that are expressing or that maybe the baby is brought to the workplace and they feed at the workplace directly.

That case you specifically mentioned at the top there, that I think was the employee was required to go to the toilets, and there was no seating facilities or anything like that within the toilets and that they were dirty. It was just an inappropriate environment. And I think the case law is very clear that toilets are not an appropriate place for a mother to go to breastfeed.

And I think around about 10 years ago, I gave advices to a client of mine and it was the first time that I had given advices on breastfeeding, very successful. Mother was coming back to work, but had made clear that she was returning to work that she was continuing to breastfeed but that she would be expressing while she was at work. And she was offered a darkened broom cupboard that they asked her to go to and she was very clear about the circumstances and said no that that wasn't suitable. That's whenever I became involved to give advice in relation to it, and they had another office space that needed some redecoration works where they were able to facilitate and they were able to put a lock on the door that provide for privacy for the employee and it was a comfortable environment for the employee to express milk. They also put a fridge into the office so that mom could store the milk and I think even on occasions the child carer was coming down to collect the expressed milk and things like that as well. And again, mom had very clear view of what she required. And it was just bringing the employer around to getting in the mindset of the requirements and thinking about morale and thinking about the health and safety of the employee and everything else.

Ultimately, they wanted the employee to be performing well on the return to work and getting back, as they would've said, to normality. And this was just a step that assisted the employee in doing so. So there is that element just from that.

Mentioned briefly maybe, Rolanda. I know we're short on time. The Ambacher and McFarlane EasyJet case in around 2016. This involved two flight attendants. They were returning to work. They've notified the employer that they intended to continue to breastfeed, but they were put on shifts. I think the shifts were unrestricted duties of 12 hours per day, which just what . . . couldn't facilitate the element of breastfeeding with their children. And it did end up in the tribunal because EasyJet had made alternatives and given them some modifications. But the tribunal find that EasyJet had come up with a number of unworkable solutions. And they said each of which involved pain and suffering a significant detriment. And they held that EasyJet had discriminated against the two individuals indirectly on the grounds of their sex.

And I just flag up, there's another case there at the European Court of Justice case of Ramos. And what it said is that failing to carry out an adequate risk assessment for a breastfeeding employee may constitute direct sex discrimination. Another risk assessment the employer carries out and constantly just focus on the role of the employee does, has to also consider the circumstances of the particular worker and what would be adequate for the worker also.

It's a thorny issue, but you'd like to think that employer they can accommodate as much as possible and avoiding of sending them off to darkened rooms and dirty toilets in order to express milk.

Rolanda: Yeah. Thanks, Seamus. I mean, that guide that was sent and we linked to is actually very good because it contains those steps. You know, like working mothers make up a huge part of the working population, so you know, it's important to facilitate that.

Seamus: And I think just, Rolanda, as well we sent through a sample breastfeeding policy, and there's a recommendation that the employer should have a breastfeeding policy within maybe their staff handbook. And I think you're going to put a link to that as well after that.

Rolanda: Yes, that's included as well. So hopefully, you'll find that of some use. Now, thanks so much, Seamus. We could talk about those issues all day. And just before we finish off, and obviously, you see a wee slide there about our eLearning program, Managing and Motivating Remote Workers and you know, and we're updating our data protection one as well to take into account of of hybrid working. And so if you're interested in any of that, if you want to contact our eLearning team, or just pop yes into the question box now and somebody will get back in touch with you. And obviously there's 50% off for webinar attendees as you can see on the slide there.

Now, Seamus, you mentioned a couple of other cases there and I'll find links for those and pop them into the transcript of the webinar, which will be up within a couple of weeks. The webinar itself if you want to listen again will be up on our website later today. It will also be turned into a podcast and available from all podcasts as you can see on screen there. Christine, who would normally do this webinar is a great podcaster. I have to say it's not something I've got into. When I'm hovering, I prefer a bit of music

Our next webinar then with Seamus, as I said earlier, it's going to be on the 10th of June because obviously we've got the Jubilee Day on the Friday 3rd for any of those who are looking to get it. We'll have on the 23rd of June then our next webinar was Lewis Silkin on our Comparative Employment Law Update, looking at the differences in employment law, current time between GB, NI, and ROI. I'd like say maybe by 23rd of June will have working executives and maybe help bring in loads of employment law. We'll see what happens with that later today.

Seamus: Let's wait and see, yeah.

Rolanda: Thanks so much, Seamus. And thanks, everybody, for joining in and we'll see you soon. Goodbye.

Seamus: Bye.