Managing Probation PeriodsPosted in : Webinar Recordings on 12 March 2021
Legal Island's Rolanda Markey is joined by Caroline McEnery, Managing Director of The HR Suite and HR and Employment Law Expert.
In this webinar recording, Caroline discusses the management of probationary periods and the implications of recent case law. This includes consideration of the following questions:
- What should a probationary clause contain?
- How often should performance be assessed/discussed during probation?
- What happens if an employee is sick during a probationary period?
- Can we discipline an employee during a probationary period?
- What is good practice in managing probationary periods?
- Can probationary periods be shortened as well as lengthened?
- Dismissing during and after a probationary period.
Rolanda: Hello, good morning, everyone on this glorious Monday morning. I mean, the weather is absolutely gorgeous outside my window. I hope it's nice for where you are. You're very welcome to this webinar, our regular monthly webinar series with the HR Suite. I'm Rolanda Markey from Legal Island, and I'm joined this morning by Caroline McEnery, the managing director of the HR. We've just bemoaning the lack of hairdressers. It would be great if you lived in Wales at the minute because this week you could get a haircut, but Caroline has managed to, as usual, make her hair look immaculate, beautifully coloured. So I'm looking forward to getting to the hairdresser's, but anyway, more importantly, we're looking today at managing probationary periods.
I just want to do for anyone who's not familiar a short introduction on Caroline for anyone who's not familiar with her. She speaks regularly at the Legal Island Annual Review of Employment Law and she submits regular monthly articles, and as I say, we do this regular monthly webinar. Now, so Caroline is a member of the Low Pay Commission and she's also and adjudicator in the Work Place Relations Commission. She has completed a Master's in human resources through the University of Limerick. She's CIPD-accredited as well as being a trained mediator. She's worked across . . . I'm sorry I keep moving things. The slides are changing without . . . I do apologise. She's worked across various series of HR for over 20 years in the Kerry Group and then the retail and hospitality sector before she was Operations and HR Director of the Garvey Group prior to setting up the HR Suite in 2009. She speaks widely and writes articles and papers on thought leadership in relation to the future landscape of HR and the challenges and opportunities that presents for employers and employees, and this year has been quite significant for the HR profession. I think no other profession really apart obviously from the frontline services has really been under pressure and so busy in terms of the nature of advice and guidance on all of the various employment and support schemes, redundancies, and layoffs and all that very complicated stuff.
In today's webinar Caroline will discuss how to manage probationary periods in light of the recent Court of Appeal decision in the O'Donovan and Over-C Technology case which addressed the issue of terminations and proper procedures to follow or whether you follow procedures in terminating an employment during a probationary period. So we set about a number of key areas that Caroline is going to address this morning and I'll pop that agenda slide up in a second. We'll have already received a few questions. I'm going to address those at the end, and some of those will be addressed as Caroline goes through the material.
And before I hand over to Caroline, I just want to draw your attention to our Employment Law Hub which you can see on the slide there, and so our Employment Law Hub has a wide range of employment law and HR resources, including case law. So we had, like, one or two cases every week, and the Employment Law Hub is fully searchable. We have a wide range of resources on probation, and believe it or not Peter's in the background here supporting us, but any time Peter pulls a report on the kind of top 50 topics in the Employment Law Hub, probation always comes quite near the top. So it's one of those subjects that never go away and it's always very popular.
So we're delighted to be able to address this today, and we will send you in the follow-up email to this hub a link to a few of those resources just to give you a bit of further reading around the areas of probation along with a link to this recording, and please keep an eye out on your junk mail because sometimes the email can pop into your junk mail folder so just check there afterwards. So very briefly then. Caroline, maybe talk about the services of the HR Suite and then it's over to you to talk about probation, and I'll catch you up shortly.
Caroline: Thank you so much, Rolanda, and welcome everybody. Fantastic to see so many of you joined this morning and thank you for taking the time out to do so. I run a business called the HR Suite. A lot of you will be familiar with the HR Suite at this stage, and we love working with Legal Island and use their resources and services so much in terms of the Hub, etc., but also I suppose we provide lots of expert advice for clients. So we operate either on an hourly bundle of hours, we do investigations based on projects, or we have retainer clients. So we offer lots of different options for people to use our services, and the biggest area at the minute is particularly busy is training investigators. We're doing a lot of investigation training. We're doing a lot of training in relation to management development type programs and we have a lot of those on offer and then training in relation to employment law and, you know, doing individual training then for people in relation to company's specific training. So if training is something of interest to you please don't hesitate to let us know.
As Rolanda said, we've had a fairly busy year. This Paddy's Day last year in 2020 I was in Fáilte Ireland's offices and recording videos as part of the emergency rollout for the hospitality industry and it's just hard to believe a year has lapsed in the meantime. We've learnt a lot and I think I can stand with HR professionals in relation to weathering the storm ahead, but today I'm going to talk to you primarily in relation to the whole area of probation.
And probation is an area that it's really important that we start with the fundamentals of what's in your contract of your employment in relation to probation and the contractual process is always back to what did you put into your contract of employment, and that recent Court of Appeal case has given us a lot of good guidance and reminded us I suppose that probation is designed to facilitate both parties see if the probation process is going to prove that both people made the right decision in relation to employee becoming recruited and the employer in terms of the selection decision that they made.
Duration of Probationary Period
And for me a contractual process in relation to it is to ensure that you have a period of probation specifically as specified, and I would say it can be anything from 3 months, 6 months, up to 11 months, and for me the probationary clause if you . . . I would always suggest the longer the better because sometimes I find the clients they've great intentions of extending the probation which we'll talk about during the course of this morning's session, but they never get around to actually doing that. So this is a really good opportunity to ensure that you've given yourself 11 months to assess the employee's performance.
Some people would say to me but the employee may not sign the contract if it's 11 months. It seems very long, etc. I've never yet seen in any client place where that's been an issue that's a deal-breaker because the employee has to back themselves that they're going to pass that probationary period. So you decide what feel is appropriate dependent on your job and your organisation but make sure you've a clause that specifies it.
Also ensure that if you have it less than 11 months that you are facilitating yourself to possibly extend that probation at the employer's discretion, and that option needs to be clearly outlined and stated in your contract. Also, it's important to say that performance will be assessed and monitored during probation and the employer can terminate the employment for any or no reason during or at the end of probation, provided that misconduct and fair procedures are afforded.
And that's an important consideration because if you highlight that the person is deemed unsuitable for the role in line with probation then you can terminate easily during probation, and easily I caveat that with tread carefully. However, if somebody is being terminated to deal with misconduct or gross misconduct during probation, we must follow the rules of natural justice. And the important part in relation to that is the employer's disciplinary procedures and policy don't apply during probation.
And normally you would have a shorter notice period when the person's on probation, both with the employer to give and for the employee to give, and then once probation is passed a longer period of time would kick in. And remember that nothing in the new Court of Appeal judgement or nothing in any other process and, you know, excuses any issue in relation to equality legislation, so if an employee says, "Look, I feel I was unfairly treated because of my gender or because of my nationality, etc.," equality grounds will still apply and it's important to ensure therefore that as you will hear me reemphasise during the session the important of that paper trail. So make sure that, you know, during the probation that we are giving that ongoing object of . . . and, you know, I suppose as specific as we can in terms of that feedback.
So the first question there how . . . what should a probationary clause contain? I've given you the key parameters of what it should contain. The most important things for me is that length of time is the fact that it's at the discretion of the employer to terminate for any or any reason during that time, and also to ensure you've the option to extend it if necessary and that, you know, the disciplinary procedure is going to apply during probation and you normally have a short notice.
Reviewing Performance During the Probationary Period
The next question is how often should performance be assessed during the probationary period, and I would suggest that you would review somebody's performance at month one, month three, and month five. And because in the ideal scenario month one is just a check-in to see how things are going. It's important you would have a probationary review form for each of these three milestones in that probationary journey. Meeting number one is going to be a very informal meeting, which is, "How are you getting on? Is it as you expected? You know, is there any gaps or is there any training or is there any support that I can give you in relation to helping you with that settling-in phase?" So month one is, "How are things going? Is there anything really off track that we need to get you back on the track?"
Same applies from our point of view that if we see the person's cultural fit or their attendance or their attention to detail, etc., specific things that we feel need to get back on track we're giving them that feedback very early. So month one requires a follow-up to say, "Thanks, Caroline, for meeting me. I'd like to confirm the key points we discussed and agreed. You're on probation. Failure to pass your probation will result in your employment being terminated." And it's important that we put that line in each probationary meeting to ensure that the employee has clarity that there's no ambiguity in relation to that.
So meeting number two is months three, and at month three we now should in my view have a really good idea on what's going well, what's not going so well, and we're giving the employee very specific feedback in relation to areas they need to work on or areas they need to improve, and in those areas we need to make sure that, you know, they . . . the whole focus of that process is adapted to suit.
So for example if the person in month two is not performing, we bring that probationary meeting forward. We don't wait until months actually to have it. So you need to, I suppose, suit the meetings to suit what's actually happening in the business in the performance relationship with the person. But I would definitely ... if you haven't a reason to bring it forward, have that meeting in month three, and in month three, the person's really clear that they're likely to pass or they're likely not to pass and month five, again me is you're making the decision to say, "We're on target. Things are going well or they're not."
And if they're not at month two, month three, four, five, whenever that highlights, we should be scheduling more frequent meetings with the person. So rather than waiting from month three to month five you might say, "We'll meet again now next month to assess probation to see how things are going," because that focus means the person is getting that specific feedback and you're also putting in place whatever supports you can.
And the benefit is by the end of month five, even though you might have an 11-month probation, the person knows where they stand and the likelihood of them passing their probation or not. And one of the points here is can we shorten or lengthen? You absolutely can, and if the person is an absolute star performer, you can shorten it. I would probably say, you know, don't unless you really, really feel you need to for whatever reason. I think you're much better off in just putting the next meeting in the diary and formalising it in line with that period. So shortening it, I'm not a big fan of even if the person is doing really well.
In terms of lengthening it, you can lengthen it up to 11 months, and the reason we don't go over 11 months is because the Unfair Dismissal Acts apply after 12 months. So, you know, it's a different piece of legislation which in a higher bar that you need to reach in terms of the termination of that person's employment. However, the Court of Appeal case is definitely going to help you in relation to terminating an employee's employment during probation.
I suppose it's important to remember that the whole focus of probation is improvement, is support, like, especially for new graduates or for somebody who has worked in a different type of environment, now they're working in yours, that we need to change the focus to suit that. So, you know, it's important that, you know, you are focusing on the support. And I would also say there should be no surprises at a probationary meeting, so you're not holding feedback to wait for the meeting. You're going to still give the person feedback on an ongoing basis as you would ordinarily, and the probationary meeting is a summary of that feedback. It's not, "Let's hold all that information and give it at that one time." So I think that's important to note as well.
Sickness and Other Absences During Probationary Periods
So the next area we're going to look at is what happens if an employee is sick during probation, and I'm going to broaden that question into what if the person is absent? What if the person is on work-related stress? What if the person is on maternity leave? What if the person is absent for any specific reason? So we broadened that absence. So what's important is including layoff right now obviously because we've a lot of people who started employment and they've been on layoff in the meantime.
So for all of those people, I would write to them and confirm, "Here, Caroline, I'd like to confirm that because you have been absent or because you're on layoff, etc., your probationary period is paused. I want to remind you what probation is is to assess your overall suitability as outlined in your contract of employment. Once you return, the employment will be unpaused in terms of your probation and then we will go from there."
However, the important thing to note is when the person is on any form of absence the clock still ticks in terms of the Unfair Dismissals Act, because the Unfair Dismissals Act is just in relation to, you know, the time from the date they started. So it's important to note that even if somebody has their probation paused, the Unfair Dismissal Act may apply. However, we know that one of the fair reasons to terminate is due to the person's performance and suitability, etc., and the probation clause, it's a contractual opportunity for you to assess that person's performance, so again, that will help you hugely in relation to any potential claims, cases, etc., that will occur. And remember the majority of the time the employee will . . . when they join the organisation it's for them to make sure that they suit the role as well. So, you know, the majority of the time you're going to have people who will comfortably pass probation once we support them in their roles.
So the sick leave element, I would always make sure that the person knows probation is being paused, and as we continue to engage with anybody who is absent that they know that is the case, and that's any absence not just sick leave as we touched on there.
Discipline During Probationary Periods
So the next area to look at is, can we discipline an employee during probation? And I suppose for me, the important distinction between probation and misconduct or gross misconduct is if you're on probation, then you don't have to get into the same level of requirement as you would if you were going through a disciplinary to deal with gross misconduct after the person passes probation. However, if you make an allegation of misconduct or gross misconduct. In other words, if the person during probation was to be allegedly accused of stealing, they have the constitutional right to protect their good name. Therefore, you would have to do the rules of natural justice in terms of a fair investigation. You would have to ensure separation of process by having an investigation, an outcome manager, and appeal, etc.
So there's a definite merit when somebody is on probation you're giving them feedback in relation to their overall suitability for the role, and unacceptable standard of performance or overall suitability is not gross misconduct, so therefore the bar is lower. So to me, focus on what does your contract say in relation to probation. I would say there's a very good argument for potentially revisiting your probationary clause in your contract and updating that and reflecting that piece to ensure that you have the opportunity to monitor the performance but being free to terminate the employment for any or no reason during or at the end of probation, and also that shorter notice.
So again, be careful and conscious that the disciplinary piece, if it's misconduct or gross misconduct, that requires fairness in terms of the opportunity for the employee to protect their good name. But in terms of unsuitable performance, fit, etc., it's a lower bar, so I suppose I would make sure that you're aware of the consequences around the different approach that you may take.
Managing Probationary Periods – Good Practice
So the next point is what is good practice in terms of managing probationary periods. And for me, the essential requirement here is that first of all the probation first meeting flags we're going to be going probation meetings. This is to assess performance, for you to request help and support, etc., so that we can assist you in this settling-in period. It's really important for me in terms of good practice that each communication you have, each of those probationary meetings, gets an initial form that they fill in, and after the meeting either you fill in the form or you send an email confirmation of the meeting.
And the benefit to having a form in advance and an email afterwards is it's giving the employee to flag any concerns they may have. For example, the employee may say, "Listen. Because I'm working remotely I feel I haven't got the proper training or I feel that the technology keeps dropping and I'm not getting the knowledge of the system that I need or actually Caroline is training me and she doesn't really have the time because she's distracted. She's doing her other work." So you're giving them the chance to flag issues early so you can resolve them.
Also, the good practice of ensuring that you follow-up in writing ensures there's no ambiguity, so the person can't say . . . well, I never knew that you had an issue in relation to my attention to detail or whatever other issue may arise. So for me, the good practice is making sure you've a probationary clause in your contract, making sure you have a system in place in relation to managing probation in terms of a form, etc., and making sure you do the paper trail, and most importantly that we train our managers in relation to giving feedback.
And again, I mentioned that's something that we provide training in, and again, we strongly encourage. Many, many people say to me all the time, "Listen, Caroline. I don't know how I ended up being a people manager. I was responsible for accounts and all of a sudden I have all these HR issues that ended up on my desk." So again, make sure that we upskill our managers in relation to giving feedback professionally, objectively, and also specifically so the person can improve. So really important in that regard.
Shortening Probationary Periods
So the next area is, can probation periods be shortened as well as lengthened? So shortened for me, I would always caveat in terms of saying I would be slow to shorten somebody's probation for the reasons I've outlined already today. So shortening probation, you know, the person can be absolutely amazing, and normally when somebody is on probation they're absolutely the best version of them they can be because they're trying to impress, they're in a new job, etc.
The other piece in terms of lengthening, you absolutely can lengthen probation, but I would suggest that other than to deal with absence, to deal with layoff, to deal with maternity, to deal with sick leave, I wouldn't recommend extending it past 12 months. If the person is with you from month one to month eleven and they've been working in the business, we absolutely should know that they're either a fit for the culture, a fit for the job, and a fit in terms of overall suitability or not. And sometimes we sit on the fence because we say, "Listen. I've put six months of training into her. She might come good." I would always say fire fast, but legally when somebody is on probation because if they're not going to be good by month 11, it's very unlikely they'll be good by month 13. Yet, the probationary period has lapsed at that stage. And I always caveat as well in terms of giving them fair process up to the length of time that you feel is fair and reasonable. So you're not going to have somebody in a couple of weeks unless they've technically said on their CV, "I'm able write employment law submissions," and they come in and they've no idea in relation to how to do that, so therefore they completely over-erred on the side of what their ability and skills and competence that the person has. So really important to flag that. Again, if we do good references and good qualification checks, etc., that always helps in relation to probation as well because we have a better insight into the person's abilities, etc.
There's always merit in lengthening somebody's probation if you feel the person is on track nearly or there are certain things that they need to work on. So for example, if you have a probationary period that's only six months, you might say, "Well, look. The person's on track but just not quite there yet. We'll extend it for up to nine months and we'll meet again each month between now and then." So remember as well when somebody's on probation you must take into account the notice period they have after you make a decision in relation to their probation, and that's why often we would have a shorter probation period in relation to an employee's contract in terms of that probationary period because you need to take that into account. So if somebody has a month's notice, you need to be taking that into account so that they still finish under the 12 months so the Unfair Dismissal Act doesn't apply.
And we make the Unfair Dismissal Act sound like it's, you know, the kind of dreaded we-don't-want to-go-there. The only reason for that is the responsibility from an employer's perspective to prove then the termination was fair falls in under that category, and the award obviously can be more, whereas under 12 months it's the Industrial Relations Act, unless it's one of the equality grounds, and I mentioned that to you already. There's no escaping if a termination occurred to do with any of the equality grounds. The likely case will be taken under equality. However, if it's, "I was unfairly dismissed with my probation and it's under 12 months," it's the Industrial Relations Act where an adjudicator at first instant under the WRC will hear the claim and make a recommendation for the parties, and obviously the parties have the opportunity to appeal that to the Labour Court, but it's a different bar in terms of what you need to achieve.
So keep that in mind. Obviously at the moment with layoff, etc., vulnerable employees absent, etc., that might be a little bit more challenging in terms of keeping it under the 12 months, notwithstanding that once you formally put a letter on record to say that you've extended it, that's going to cover you from that perspective.
Dismissals During and After a Probationary Period
And the final area before we go to questions is in terms of dismissing during and after a probationary period. So let's focus on during first and then let's look at after. So dismissing during a probation period, the best avenue to go down, and we're always so conscious that we want to be fair to everybody when we ever are dealing with any form of termination because we appreciate how big a deal it is in terms of impact on the employee's career, their mental health, etc., so we always tread carefully. So for me, one of the most important things in relation to any form of dismissal like this is that the person can see way in advance coming down the tracks where they stand. So we're giving them lots of feedback very early on to say, "Look, Caroline. Your attention to detail dramatically needs to improve because I'm correcting errors or, you know, whatever the case may be." So really important to ensure that that's being put in place. So again, they've got the heads up.
Second thing you need to clearly outline in each probation you're linking it back to the contractual clause and the contract of employment which says you're on probation. Failure to pass your probation will result in your employment being terminated, and again, you're reminding them of that caveat. And again from a morale and a positive point of view, you want to do this a very constructive positive way but in doing so you're also giving the person the heads up that they really do need to improve.
And finally, if you are terminating the person's employment, you've got to assess in your policy whether they've got the right to appeal that termination of employment due to probation. And what my advice would be is it's better that they internally appeal it than they go externally to the WRC as the first port of call. So again, you need to consider whether or not you give them that opportunity to appeal in relation to your policy.
But for me, I always think that if they appeal this internally it's better that you can you can have somebody who hasn't been involved in the probation to review and assess whether it was fair or reasonable, because there'll be a lot of examples from case law which shows many of the probationary cases that have failed is because the employee says, "Listen. I was never going to get a fair chance. My manager set me up to fail and they set targets that were wholly unrealistic for me to achieve so as a result of that I was never going to win." So again, someone independent can assess that criteria to say, "No, I feel it was fair and reasonable," Or, "Actually, you're right. It wasn't." And again, it just nips things in the bud proactively early in relation to a potential grievance and can give the employee confidence a fair process and prevent a case going to the WRC which obviously is not a worry in terms of, you know, what will the outcome be if you feel you've done unfair process.
But the issue with the case going to the WRC . . . obviously we represent clients all the time and the key thing is the time going into preparing the submission, the distraction from the day job, etc., etc., and also the morale and the fallout from it in terms of other staff. So again, you know, think about that appeal process as you review your probationary clause following on from today's webinar.
And the other piece to that is what about dismissing after a probationary period. And even if it's an error on your part. So if it's the case that the probationary period lapses because you've been too busy for whatever reason and you just haven't got around to addressing it, then if the probationary period has lapsed and you have nothing in writing to confirm it's paused or has been extended, it's considered that the probationary period was passed, so therefore you now need to start from scratch in relation to either a performance improvement plan or you need to start in relation to a disciplinary in relation to unacceptable performance.
What you're now going into the formal process in relation to discipline and grievance and, in this scenario, in relation to disciplinary specifically in relation to a verbal or a finally written dismissal. So it's a much more obviously weighty process that requires all the separation of process, etc., during the process to be carried out in line with rules of natural justice, and in line with the S.I.146.
And we touched on, you know, the key element that many managers will say is, you know, the employee says, "Listen. My manager is bullying me. They're not giving me fair process." And we all get great solace from the new code of practice in relation to bullying which clearly outlines what bullying is not as much as what bullying is, and clearly it outlines in the policy that it is not performance management. It is not, you know, two colleagues having, you know, an interaction, etc. So again, it just reminds us that if we do the process correctly, if we follow the contractual clause in our contract, if we make sure we've got our paper trail in place, then we can manage probation proactively within the organisation in line with all of this.
Top Tips for Managing Probationary Periods
So I suppose to conclude my top tips for you today in this webinar would be that during a probationary period it's really important that the employee is really clear in relation to what is probation and what is it going to entail. So I would suggest that it's good timing to revisit your probationary clause in your contract of employment and the Court of Appeal case with O'Donovan vs Over-C Technology Limited where this employee was employed and failed his probation, and one of the key distinguishing factors of this case is where we were outlined that during a probationary period both parties are and must be free to terminate the contract of employment for no reason or simply because one party forms the view that the intended employment is for whatever reason not something they wish to continue, and that's the hope of that Court of Appeal case where Costello J. made that really clear differentiation that both parties are going into this new contract of employment in relation to signing up to this new role. And where that's particularly challenging is where you have an employee and they're going into a new role or they may be promoted within the organisation where you would likely have a probationary period to go with that new promotion or to go with that new role. And I would always stress test and discuss with the employee what's the consequence if you fail probation in this new promotion or in this new role so that there's no ambiguity afterwards if it's a case that, well, I thought I would go back to my old job or actually I thought x, y, z, whereas that might be the case that you have agreed that they go back, would clearly outline that in writing if it is an internal position where probation is going to be kicking in after somebody has more than 12 months service with the company.
And I think the case in relation to this Court of Appeal and is very much reemphasising what we already knew and hoped, which is probation is to ensure from an employee's point of view that they signed up to the right job, and if not, they've a lesser notice period to give and in relation to the company, ensuring that they selected the right candidate who is the right technical and cultural fit with the company, and if not, they too can give a lesser notice and terminate for no reason or simply because one party forms the view that the intended employment is for whatever reason not something they wish to continue. And I think that's really important terminology for us to incorporate into our contractual clause in our contracts of employment.
So I'm conscious we're . . . we've only five minutes to go, Rolanda, so I'm going to stop there and facilitate questions and answers before we conclude this morning's webinar. Hopefully, you found that all really helpful and useful and feel free to ask any questions that we feel would be helpful in this regard.
Probationary Periods and Continuity of Employment
Rolanda: Thank you very much, Caroline. We have had quite a lot of questions come in I have to say. We're not going to get through them all. Quite a few of them are around the area of pausing. So I think it's probably helpful to just maybe clarify a few things.
So what you've said is that yes, pausing probationary periods for absence, for lots of different reasons, maternity, sickness, layoff, that's all fine, but you have to be aware that you can't pause the continuity of employment. So their service is still ticking on and that's a result in some cases that could bring them to have over a year of service which then . . . any dismissal then is subject to the Unfair Dismissals Act. Isn't that correct? Isn't that what you . . .
Caroline: Fantastic, Rolanda, 10 out of 10, fantastic. And It think a lot of people, especially if the responsibility is delegated to line managers, they don't do the follow-up to say the probation is paused nor do they do the follow-up because they may think the person is going to be coming back sooner than they thought, so again, it's making sure that you do that follow-up in writing to confirm it is paused, otherwise in the absence of it, it will automatically pass.
Rolanda: Okay. And also another point just to clarify is that in relation to the O'Donovan case it dealt with fair procedures in the dismissal of an employee during a probationary period. And I suppose the distinction that we're making today is that in dismissing an employee during a standard ordinary probationary period that lasts less than 12 months it's clear you don't have to follow fair procedures in terms of what we'd normally expect in a dismissal situation. But what you're saying here is that in managing a probationary period appropriately does involve following an assessment process, so there's a bit of procedure involved there but those are three separate things. Managing a probationary period to ensure that both the employer and the employee get the most out of it is an important practical and good practice step, but the O'Donovan case is really dealing with the procedures you follow in the dismissal of an employee during or at the end of a sort of a standard probationary period.
Caroline: Yeah, and I would say . . . like, I would be very slow to ever say to anybody you don't have to follow fair procedures at any stage of the employment relationship because ultimately I use the example of equality. So if I come along as an employee and say, "Well actually I feel the reason that I was . . . you know, I failed my probation is because I have a disability or because of etc.," Whatever the other reasons may be, remember the burden of proof is still once the employee proves that prima facie case i.e. that they have a disability and that your knew about it, etc., that ultimately then the burden shifts to you to show, "No, we carried out a process which was nothing to do with a person's ability. It was to do with objectivity associated with their performance." And again, there's some good case law to back that up.
So I would say even though you're not getting into the same level of the rules of natural justice in terms of the investigation, the outcome, etc., the appeal stages of a process, you will have heard me say that you have to decide whether or not you allow the person to have an appeal, because to me in terms of you doing best practice and you facilitating the employee to feel they've got fairness, you might say, "Actually, our policy is that we will allow the appeal so that the person feels that not one person has been that judge, jury, and executioner." So people can still make allegations of I wasn't treated fairly, and the better your process is, the better you'll be able to stand over those allegations and show that they're not substantiated.
So I would say the bar is less, but the process requirements are just as high because if we make people think that . . . which I appreciate we're talking to very experienced HR and employment law professionals on a webinar like this, but when we talk to line managers if they feel that they can let people go during probation without that level of process, my worry is that if an issue was to occur, we would have no paper trail to back up the objectivity of our decision making and our good process. So I would caveat the fact that we've got a lot more, you know, leeway around probation, caveating that that you've got your clause in your probationary contract updated, caveating the fact that your manager or your HR professional, etc., has given fair process and the paper trail is in place.
Probationary Periods and Internal Promotions
Rolanda: Okay. Thanks, Caroline. We've had a few follow-up questions in relation to the promotion . . . probation during a promotion and you covered that just because you finished up there. Could you maybe just clarify then if somebody hasn't contractually got the right to go back to their job, they have over a year of service, and they're failing their probationary period in their new role. What are the employer's options then? Does it mean dismissal?
Caroline: Yeah. Like, I would say as an employer you've to go back to what is the new contractual agreement you have to putting in place with that employee. So for example, their continuity of service obviously continues, but what did you put into the contract? Did you explicitly say in this role a new probationary period is going to commence? If you fail it your employment will be terminated? Because oftentimes an employee won't accept the new job based on those conditions, they would . . . you know, that negotiation should ideally happen when the person has been offered that job. So again, just think about that in relation to, you know, how that looks and feels, etc.,
And second of all, make sure that you've got clarity in relation to avenues the employee has been given. So for example, if they're going into a new role, they're an internal employee, have we set them up for success so that we're not putting them into a role that they didn't apply for? You know, they said, "Well, look, Caroline. I don't want to go into that department or do that job because I don't feel that's my skillset." You know. So again, there's so many considerations in relation to that so I would just remind you to ensure that you're doing it right from that perspective. So definitely agreed upfront with the employee and ease out what will happen if that was to occur.
Probationary Review Meetings and Potential Warning of Dismissal
Rolanda: And just a final point. Someone is making the point that I suppose hiring somebody that might demotivating to be saying in a probationary review meetings that your employment could be terminated if this doesn't work out in terms of psychological impact. Is it important though to make sure that employees are aware that that is a potential issue or an outcome?
Caroline: Yeah. Like, I mean there's no question like my entire focus and job, you know, always as a HR professional always is to try and ensure that we protect people's mental health and that has never been more spotlighted than now during COVID. We also have to be straight with people so that they understand where do they stand because the worst thing we can do is something comes left field and they are, like, "Oh my god. I never knew that and if I had known that I wouldn't have taken the job." Or that, you know, whatever the case may be.
So for me making sure that we're really clear with the person to say, "You know, look. You're on probation. My job as your manager is to support you to be a success, but obviously probation is for you to see is the role right for you, is the company right for you, and for us to assess the same." A lot of companies now have employee assistance programs in place where the employee can get support if required in relation to different avenues, you know, associated with that. I empathise massively and I would say that hopefully if you're, you know, landing that right with the person, and that's where training our managers is so crucially important. I feel so sorry for so many managers who have got no HR training and spent years in college to do college, you know, qualification and now they're managing people and they've no, you know, skills in relation to how to give that kind of feedback. So I think we've to coach our managers in relation to how to do that or else they're not going to do it. They're going to skim over it and the employee is going to be worse off and worse off psychologically when they get clanger of, "Caroline, this isn't working out." And they're saying, "I never saw this coming."
Rolanda: So it is really important just to ensure that . . . you know, that you do those reviews and as you say, it's very easy forget out about it, particularly when somebody is performing very well. Okay, we could spend another hour talking about this based on the number of questions coming in, and we are sending out . . . in the follow-up email to this webinar you will receive a link to the recording, so we'll know some people have some sound issues at the start. Some people got in, but you'd be able to listen back and hear the rest of it. We're also sending a link to about five or six articles that were all on our hub in relation to probation that will address a lot of the questions that you've had today and questions that you sent and I will collate those and try and get them dealt with in an upcoming article from one of our writers, but it just remains to me to say thank you so much again to Caroline for your time and for your expertise.
Caroline: My pleasure.
Rolanda: I think it's important just to remember that a probationary period is not a get-out-of-jail-free card. It's a useful tool but it is not a get-out-of-jail-free card for employers, so it's important just to remember that. Caroline's contact details are there if you want to follow-up with her or to join her regular newsletter, you can subscribe to that and you'll get regular updates from Caroline. And our next webinar, well as you can see, is the 15th of March, I haven't updated that slide, naughty me, so we look forward to seeing you again next month with Caroline. I just cannot remember the date off the top of my head. I do apologise, but we follow-up again with whatever is a hot topic at that point in time. So thank you very much for your time, Caroline, and thanks everyone for listening.
Caroline: My pleasure. Thank you.
More on Probation
- Your Probation Questions Answered
- Managing Probation Periods: A Round-up of Recent Resources (March 2021)
- Probationary Periods and Fair Procedures - Implications of the O’Donovan Case
- Terminating during probation – Significant Judgement from Court of Appeal Restores Balance
- C&W O’Brien Architects Limited v A Worker 
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.