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.