In this webinar recording, Caroline Reidy of The HR Suite will discuss good practice in managing probationary periods and performance.

Rolanda:          Good afternoon, everyone, and welcome to our regular monthly webinar with Caroline Reidy from The HR Suite. 

                        We're just delighted that January is now almost over, and at this stage most people are paid or are looking forward to getting paid. So it's going to be a good weekend, I think it's probably safe to say, particularly with restrictions being eased a wee bit. I've never looked so forward to getting out for dinner, because you feel like you haven't really done much for so long. So it's all good. 

                        Today, as I say, I'm joined by Caroline Reidy. You can see her there today. And I'm Rolanda from Legal-Island and I'm part of the Learning & Development department in Legal-Island. 

                        Now, for anyone who's new to us, and we have quite a few people listening today, just wanted to tell you a bit about Caroline in case you're new to these HR Suite series of webinars. 

                        So Caroline Reidy is managing director of The HR Suite, but she is a very experienced HR director. She has been a past member of the Low Pay Commission, and she's also an adjudicator in the Workplace Relations Commission. 

                        She has completed a Master's in Human Resource at University of Limerick. She is CIPD-accredited as well as being a trained mediator. 

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

                        Caroline speaks widely. She had a recent TED Talk there. We featured it in our weekly review. I'm not sure if you saw it, but you can maybe mention that, Caroline. It was very good.

Caroline:         Thank you.

Rolanda:          And she writes articles and papers on thought leadership in relation to the future landscape of HR, and the challenges and opportunities that that presents for employers and employees. There's never been a more right time for change, I have to say, in the workplace. 

                        Caroline spoke, for anyone who attended, at this year's Annual Review of Employment Law on the subject of bullying versus proactive management. And this month's webinar is going to focus on managing probation and performance management. The start of the year is always a time when people are tending to be recruiting new staff, and people are looking for new jobs. So it's a good idea to remember all the good practice things that you must carry out in relation to new staff with regard to that sort of managing the performance and through the probationary period. 

                        Just before I go on to Caroline, I just want to outline our newest eLearning Course, which we are very excited about: The HR Toolkit. You can see on the screen there some of the topics or the modules, if you like, that are included in it: Recruitment in the Modern Workplace, Tackling Sensitive Workplace Conversations, Managing Performance, and Dealing with Difficult People. 

                        And in fact, we've had an article from Caroline just this week on tackling sensitive workplace conversations. And that's a very topical subject these days. 

                        So just moving on then, as I said, Caroline is going to be looking today at managing probation and performance and dealing with those good practice aspects of trying to highlight where somebody has gone wrong with performance and how it can be improved. 

                        So over to you, Caroline. 

Caroline:         Thanks so much, Rolanda. I'm delighted that so many of you could join us this morning. As always, we have a jam-packed session, and if anybody has any questions, as always, we try and fit some in at the end. So feel free if you'd like to do that, as well. 

                        And as Rolanda said, I've written a book called "The Act of Asking the Right Questions", and I've also done a TED Talk. The book is "A People Manager's Toolkit" for all the stages of the employment relationship, starting from recruitment all the way through to exit interview. A lot of companies give it to new managers who are starting in their roles, and I'm always delighted to see people have Post-its in the book and dog-ears because they actually actively use it. 

                        So anybody that's interested in the book, please don't hesitate to contact us at info@thehrsuite and we'll send you some details. And the TED talk is available on my LinkedIn page, Caroline Reidy, and are on the TED Talks page as well. 

                        In January, I think it's good thought-provoking to get us kicked into the art of asking ourselves great questions, as well as a key tool in managing people. 

                        So today, our topic is going to be the whole area of probation and the area of performance management. I suppose I'm going to start with the area of probation. 

                        I suppose the starting point always is what does it say in the employee's contract of employment in relation to the probationary period? And it's so important that it's really clearly outlined. It's one of the terms we're obliged to put into the contract of employment, because if you don't put it in, then it doesn't apply. 

                        So really important that it is included, and that you have a very clear clause that outlines that during the first X many months you're on probation, and while you're on probation, the company can terminate your employment for no reason or no reason whatsoever. 

                        Our advice always is never to invoke a termination in a sudden way, but a recent case that you'll be familiar with, which is the O'Donovan case, which happened last year. It seems the years have blurred with COVID, but recent times. And this case outlined that once the contract clearly outlines that both parties have agreed that the probation can be terminated for no reason or no reason whatsoever, then that clause can be invoked. So it's important that we update our probationary clause to reflect that. 

                        The second thing to be aware of is, as you know, the majority of our legislation in Ireland is transposed from EU law. And as part of that, one of the European directives in relation to probation is to advise that probation should be six months in duration. And if it is longer than six months, there's reasonable cause for that.

                        Now, there's no indication that that's going to be transposed into Irish law in the immediate future. But again, just something to make you aware of. 

                        We'd always have suggested that it's better to put in 11 months' probation. For many managers, they have great intentions of doing their probationary reviews, but for whatever reason, they don't get to them. And all of a sudden, the person is there seven months. If their probation is six, well, then that time has lapsed.

                        And it's also really important to remind managers that if somebody is out sick during a probationary period, they write to the person to explain that their probation is being paused pending their return.

                        The purpose of probation is to assess somebody's suitability to the role. And during that time, we're going to support the person as best we can, provide them with anything they need to make them successful in the role in terms of support, etc., but it's really important that you use probation proactively also to assess suitability and fit. 

                        As we all know, once the 12-month period lapses in time, it doesn't matter whether the person has been out sick or is at work, they're still eligible to take a claim under the Unfair Dismissals Act. 

                        However, to reassure people, once you show the person is on probation, the person is getting continuous feedback, the person may have been absent, and for whatever reason the time has exceeded the 12-month period and they're terminated maybe in Month 14 or 15 due to failing their probation, there has been success at the WRC in showing that that was a fair termination on the basis that the person had been given lots of feedback in relation to their performance, given every support and every opportunity to improve. 

                        The other area, just to mention, is sometimes there's a myth that an employee can't take a claim once they are less than 12 months' service. But remember, there has been some case law to show that employees have been awarded quite high awards under the Industrial Relations Act. 

                        One of those has been the hotel where a hotel manager was dismissed while he was on probation without any process, and the clause in his contract wasn't robust enough to facilitate that to happen. And again, he was awarded just shy of €100,000. 

                        So, again, the Industrial Relations Act, an award can be made. But obviously, as we know, enforcement is the challenge versus the other pieces of legislation, which are much easier to enforce. 

                        So top tips around probation. Review your contract of employment and assess what your contract of employment says. Next, consider what your clause needs to say in line with the O'Donovan case. And finally, consider what steps you have in place to ensure that the probationary period that exists currently is being managed proactively to ensure you have a really good paper trail. 

                        And normally, we would advise that you meet the person Month 1, Month 3, and Month 5. Month 1, you're assessing general settling-in. Month 3, you should have a good steer on how they're performing. And Month 5, you should be able to confirm they've either passed their probation, or at that stage, they should be on a corrective action plan if they need to get support. 

                        The major empathetic piece at the moment is we've lots of new people starting jobs that are working from home or working hybrid model. And as a result, their settling-in period, we're finding, is taking longer for them to culturally maybe fit and suit the role and really settle in. 

                        So really important that we think very proactively in relation to how we're managing the induction of new employees who are starting and are working remotely or in the new hybrid models. 

                        We're obviously familiar during the week with the proposed write to request remote working, which will be in, in the coming months. And again, one of the key categories of worker that I believe we should at least have a hybrid, but definitely have them in the office for some of the time, is for those new cohorts of employees. 

                        I feel culturally and even just what they hear in terms of sitting by Nellie and building relationships with their colleagues, etc., that there is merit in having a blend for new employees, particularly solicitors, trainee accountants, other people. Training by osmosis and gaining that expertise is really important. 

                        However, I'm a massive fan of hybrid working and remote working. I think it's the future of work, and I think we've worked really hard to ensure that that transition is happening really positively in organisations. 

                        It's a topic we'll cover once the bill is going to be enacted, and we'll definitely give you some guidance in relation to the remote working and the right to request remote working. 

                        So other things to note is now that we're working in a hybrid model or a remote model and now the emergency COVID regulations have been lifted, we're entering more normal remote working or more normal hybrid models. 

                        What is it that we need to do in terms of changing managers' management styles, if there is a need to, if that hasn't happened already, to ensure we're very much still operating the virtual open door policy, that there are specific coaching sessions and one-to-one sessions happening to ensure that we're supporting employees and coaching employees? 

                        I'm finding as we do a lot of training in organisations, whether it's to do with dignity and respect, whether it's to do with time management, whether it's to do with proactively managing in a hybrid environment, we cover in all of those courses the importance of respecting the other person's time, etc. 

                        And one of the things that keeps coming up in all of them is how people feel that they're going from one meeting to the next meeting to the next meeting. And hence, now we're recommending that instead of doing a one-hour meeting and going straight into the next, that it's a 45-minute meeting so you have 15 minutes to make notes from the last meeting or send a follow-up email, and then prepare for the next meeting. And again, it's making a huge difference to productivity. 

                        I use that as a really good example in relation to what may be performance issues in relation to somebody's efficiency. We've done nothing to help them adjust to a new way of working. 

                        So again, thinking about how are we supporting managers to adjust their management style? It needs to change in a hybrid model if that's going to be the future of work within your organisation. 

                        And second of all, how are we supporting employees who are working remotely to maximise their productivity and their efficiency? And again, in line with their right to disconnect, that they're managing the time that they're at work much more effectively and much more efficiently. 

                        Doing what we always did will give us the same results, as we know. And doing this, the same as we did in the office is just not going to work as effectively, either for the manager, the organisation, or the employee. 

                        We're working so hard at the minute with culture and retention. That's prioritising this going into 2022. I would really strongly recommend in helping support probation of new staff and helping support efficiency and productivity of staff going forward. 

                        We've new interns we take every year, and one of the first things we do with them is time management training to help them work more efficiently in the type of environment we work in. So again, food for thought. 

                        The next area I want to talk to you about is the importance of proactive coaching, and in terms of ensuring, whether it's remote, whether it's hybrid, or whether it's in person, the importance of meeting the employees and having clarity in relation to the support and the coaching that we give. 

                        As Rolanda said, I've written the book "The Art of Asking the Right Questions", and I've done the TED Talk on it as well. And one of the key areas around "The Art of Asking Questions" is we don't need all the answers, but we need to be asking the right questions. 

                        And in line with that, we need then to be keeping the paper trail and making sure the employees are clear on what is it we've agreed, and that both parties are clear. 

                        One of the things we don't want to happen in performance management is that psychic communication or psychic management becomes the norm, which means that people start presuming that they know what the other person is thinking. And as a result, unclear communication means that somebody could go away and work on a project and go off on a tangent because they weren't clear at the outset. 

                        So again, are we really clear, and are we actively putting in place active coaching to support the employees in relation to proactive management"

                        We take it that we are, and then let's go down the road of assessing performance. What are the current key things that people are doing to support from a performance management perspective?

                        So getting back into our one-to-ones at the start of the year is a really good practice to ensure everybody is clear in relation to expectations, in relation to goals, in relation to career development, career progression, training, etc. 

                        But we're noticing now and supporting a lot of organisations with a more evolving performance management process. So rather than it being, "We do a review once or twice a year", there are more active engagements happening during the year, and that the employee or the manager can initiate a check-in and a one-to-one. 

                        The idea of that is it's trying to have a more collaborative and a more timely approach from an organisational perspective to either party reaching out. 

                        But at minimum, they meet four times a year. And the four times a year are proactive check-ins rather than a 10-page appraisal form to be filled in. These are much more dynamic and much more in keeping with the concept that so much changes and so much happens in any organisation now with change never being more constant. 

                        So again, you are thinking about what the system is you have in place for employees who have passed their probation to assess and check in, in relation to performance. And again, trying to schedule and plan what does that look like for the year ahead. Definitely worth looking at the whole concept of a more just-in-time and a more timely approach in relation to performance management. 

                        Next, I suppose I want to talk to you about performance improvement plans, and also in relation to some issues in terms of where we could end up being the wrong side of the legislation if we were to address issues. 

                        One of those is obviously, during COVID, a lot of roles and organisations did a serious review from an organisational perspective in relation to the future of roles within the organisation in line with business requirements. And it's really important.

                        Many of you will have seen the Sodexo case recently, and the IT case during the week, where the WRC have awarded very high awards where employees have been made redundant. And the employee would have challenged the fact that procedurally they weren't correct. And instead, they were performance or they were guise of redundancy, but not being the main reason. 

                        So again, I would caution against considering redundancy as a solution to any performance issue. 

                        Remember, redundancy is designed when a role is no longer required in the organisation. It has nothing to do with whether or not the person is performing. 

                        So if we have an issue of performance, the best approach is to start a performance improvement plan. And the key element to a performance improvement plan is it's fair, reasonable, and supportive of the employee's success to achieve its outcome.

                        So for example, if you set unrealistic targets for the person in the performance improvement plan, and they object from the very outset to say that they're not in keeping with the rest of the team, for example, you're already setting yourself up for an issue in relation to that being successful as we go along. 

                        Again, really important that when you're setting a performance improvement plan in terms of targets, you're setting realistic, fair, and measurable targets from the outset that are fair and reasonable to that role. And we're also providing whatever necessary support we can to help the person achieve the required target. 

                        In relation to milestones throughout that performance improvement plan, personally, I think three months is a reasonable amount of time on a performance improvement plan. I think if it goes on, for example, for six months, it's too long, and I think it can be really difficult for the manager and really difficult for the employee. So I feel that that's a fair amount of time to give the employee to assess how they have improved in those three months. 

                        For some roles, it may need more, but if you assess that to start, I think that will be a very good starting point.

                        In relation to the paper trail during this process, it's essential that it is documented throughout the performance improvement plan in relation to the check-ins that you have with that person. 

                        So for example, if you're meeting bi-weekly or you're meeting monthly, you're giving the employee the opportunity to flag how they feel they've got on and highlight any supports that they need. And vice versa, you're going to be offering the support and then assessing how they're getting on in relation to that criteria. 

                        And that's for job-specific tasks, a much more favourable option, because you've got tangible KPIs to measure. However, if it's to do with a behavioural issue, that can be a little bit more challenging. 

                        And the key starting point always in relation to any performance issue is "What is the standard that we need the person to achieve?" So again, normally, we will have core values within the organisation that set the standard in relation to behaviours, in relation to customer ethics, in relation to team ethics. And a breach of any of those in terms of an issue may result not in a performance improvement plan, but in a coaching conversation. 

                        And if that was to be repeated again, depending on the severity and seriousness of the issue, then the person would go down the road of a disciplinary action. But if it was the first offence and if it was something that a coaching conversation could remedy, that would be the best approach. 

                        The more we nip issues in the boat, the better and the fairer it is for everybody, because we want a culture that's going to be supportive and proactive rather than one that's addressing issues from an IR perspective. So again, trying to be proactive in that regard as much as we possibly can. 

                        Again, though, for some issues, they may be serious enough. For example, we know that we have our new Bullying Code of Practice, which is in place since Christmas 2020, and really, I suppose, came to life right throughout 2021, where organisations have worked hard updating their policies and training both managers and staff. 

                        We've obviously worked with a lot of you in relation to training, both contact persons within your organisation, nominated persons, and managers and staff. 

                        But one of the key things that came out of that was many people during the training saying things like, "Well, I didn't realise putting a joke up on WhatsApp could become a performance issue if somebody took offence to it". But it's a work forum. 

                        Again, we've had many incidents during the year where somebody would put an inappropriate joke or message on a work WhatsApp group thinking nothing of it, yet somebody taking offence and, again, it being in breach of your harassment or your dignity and respect at work policy. 

                        So raising awareness, I think, has been a very proactive approach in relation to dignity and respect to ensure that there are no performance issues falling out of that. 

                        I suppose I'm going to maybe recap some of the key areas that we've covered so far, and then I'm going to maybe do some Q&A. I see many of you have questions in the question box, and I'm going to help Rolanda in terms of answering some of those as we go along. 

                        So just to maybe start with the key elements of what we're covering in today's session. 

                        First of all, we want to ensure that our contract of employment has the correct contractual clause. Remember, no matter for how long the person is starting with you, they need to have a contract of employment. We obviously know we have to give them the statement of terms initially and then the full contract. For most employers, they give them the full document at the outset so that the person is clear what they're signing up to. 

                        The signing process can be electronic. It can be a picture that they send back, etc. It needs to be proof of acceptance. That's the key thing. 

                        It needs to clearly outline what your probationary period is. The normal advice would be to have it for as long as possible, up to 11 months. Then you can pass the person sooner than that, should you so wish, if they meet the required standard. 

                        However, we're also flagging the European directive that is indicating that six months should be the maximum probation unless you have a reasonable cause for it being longer than that. That's not planned for implementation any time soon, but we will keep you updated in relation to that. 

                        We also spoke in relation to the O'Donovan case and the importance of ensuring that your clause has in it that the probation can be terminated for no reason or any reason whatsoever during that initial probationary period. 

                        We've also stressed that if the person's name is called into disrepute or if there's a disciplinary linked to the probation, we still have to ensure that we give the employee fair process and fair procedure in line with the rules of natural justice. 

                        So again, we never advise that anyone would ever invoke the clause that they terminate for no reason or no reason whatsoever except in exceptional circumstances where you would have got advice in advance. 

                        So again, really important the rules of natural justice in relation to performance and performance management will always be what guide us. Again, in a culture of fairness, we want to ensure we're doing all we can. 

                        We spoke about the importance of looking at induction and induction management for our new employees and our new recruits to make sure we're giving them every success and opportunity of success from the start, particularly those that are working in a hybrid or a remote setting at the moment. 

                        We spoke about the remote working style and the need to up-skill managers and up-skill employees in relation to maximising performance, and particularly for managers in relation to proactive coaching. 

                        We spoke about the importance of the art of asking the right questions, and then becoming really good coaches. And being a really good coach involves asking really great questions. So again, really important that we look at that. 

                        We also spoke about the importance of the awareness in relation to the management style of the manager in relation to that virtual open door, in relation to doing the one-to-ones, in relation to setting time aside for support, and also the importance of ensuring clear communication. And we also spoke about the importance of time and time management. 

                        We then spoke about our performance one-to-ones and the importance of having a structure. Employees want feedback, and in the absence of feedback, they feel that they're not performing as well as they could. So really important that we do proactive performance management.

                        However, I'm suggesting that you maybe consider a more dynamic and a more evolving performance management style and system. And I've given you examples where we've helped many of our clients. Rather than it being a once-a-year annual review, they're doing a more dynamic opportunity where there are so many set in the year in the diary where then either the manager or the employee can do additional ones in the interim, which are focussed at career development, overall objectives, training and support. So again, it's ensuring both parties are collaboratively taking responsibility for the person's performance and career development and supporting them to maximise their potential. 

                        And then we spoke about what if there are issues? And we spoke about the importance of a performance improvement plan being a really good way particularly for specific job-related tasks and activities like missing deadlines, quality assurance reports, things that can be tangibly measured, call centre numbers, etc. That performance improvement plan allows us to set timelines in place in relation to improving those. 

                        We spoke about the importance of having a really good paper trail. And finally, we spoke about ensuring that the employee gets full opportunity to be heard. 

                        Rolanda, I'll pass over to you for maybe some questions. We're just on time. So over to you. 

Rolanda:          Thank you, Caroline. We have loads of questions, so I'll just get stuck in if that's okay.

Caroline:         Great.

Rolanda:          Couple of questions come in before the webinar, and one of those was about 360-degree feedback. A company is trying to introduce it, but is getting a bit of resistance from management to it. Not everybody likes giving feedback, I suppose. So what would you advise them in terms of dealing with that resistance.

Caroline:         So I'll often say to people, when they talk about 360-degree feedback, it's like be careful what you wish for, because many start going down the road of 360-degree feedback and they end up halfway through having the challenges that it brings. 

                        But I think it brings huge positives, because obviously what it does is it gives us really good feedback from all levels and throughout the organisation. But I would definitely start with doing training and awareness before I'd ever commence any of the 360-degree feedback in relation to its purpose, its benefits, how we have to accept the feedback, what the intent with the feedback will be done, etc. 

                        What a lot of people find with 360-degree feedback is if we launch into it without doing a proper introduction and implementation phase in advance, people feel that anything that's negatively said about them will mean that it's going to negatively impact them, rather than seeing it as a constructive element that we can work on. But also taking into account that sometimes you'll get feedback from one that might not be reflective of everybody else, either. 

                        So I think the implementation piece, Rolanda, for me is key to the success of making sure 360-degree feedback works well. And I think that needs to be done with those that are participating in it from an employee and a manager perspective so that everybody is clear in relation to the benefit, the intention, the output, the next steps, etc. 

Rolanda:          Yeah, and I suppose a lot of guidance needs to be given on the language of that feedback so it's not a griping session, that it's behavioural. Maybe good examples of the kind of things that would be feedback so that it doesn't cause that offence that is, I suppose, the risk with it. 

Caroline:         I agree. No, I think you're right. And I think if you do the implementation phase first and right, you're setting it up for success as well, which I think is the whole purpose of it.

Rolanda:          Yeah. There was a query about fixed-term contracts and probation. So I suppose if we take as an example a fixed-term contract is for a year or nine months. Let's say a shorter period of time. So should probation be three months? How long should you give for performance management? What approach would you take with those, Caroline?

Caroline:         I would 100% definitely include probation in a fixed-term contract. Ultimately, if you take the person on and in Week 4, we realise that the . . . Let's use an accounts job. We thought they had a certain level of knowledge and skill, but it turns out that they're much more junior than what their CV had indicated. Because they're only there maybe to cover a maternity leave, etc., you have recruited someone who's able to hit the ground running rather than somebody who is at a different level. 

                        So I think that's where probation can be really essential and really important in scenarios like that. 

                        But again, I'm prefacing the O'Donovan case by saying that if there's any issue associated with a disciplinary, calling the person's name into disrepute, etc., you need to go through a process in terms of the rules of natural justice. But I do think probation is really important in fixed-term and in full-term contracts. 

Rolanda:          There are quite a few questions about probation, and a couple of people have asked this question about if you're absent on a probationary period, let's say because of annual leave or sickness or something like that, does that automatically extend the probationary period?

Caroline:         So the answer is no. You need to write to the person and confirm that to them. And again, that's back to the clarity piece, particularly when there's a risk that it could go over the 12 months or could go over the amount of time you've stated in your contract. 

                        So I'll give you an example. Say you have a six-month probation in your contract for the person, and they go out sick in Month 5 and there's a possibility that they could be out for a couple of months. So you would be writing to them then to say, "Obviously, we're going to support you while you're out in whatever way we can. We look forward to welcoming you back. We've paused your probation during your absence, and we'll resume when you come back". 

                        So again, that prevents there being any ambiguity about the fact "What did it say in the contract?" It said a specific date in the contract, which has lapsed, so that will be an important watch-out for people.

Rolanda:          And if somebody does have a high level of sporadic absence during a probationary period, then is that one of the things that you would be monitoring or talking to them about when you're looking at whether it's been a successful probationary period or not?

Caroline:         It's one of the ones you have to tread carefully with because if the person is out and it's linked to, obviously, a disability, an underlying health condition, etc., they can't be discriminated against because of that. However, being at work and managing absence is a requirement of the job. 

                        So again, without doubt, most organisations would have attendance at work as a KPI. And again, many organisations, you get an extra day off, for example, if you've missed no days off or different criteria like that. 

                        So I would say it's definitely something to monitor. Just tread carefully so that it's not going to be discriminating the person in any way either if there are valid reasons and medical certs and different things like that. 

Rolanda:          Someone is asking there if there is alcohol or substance abuse issue that arose during probation, you would be, as you say, treading carefully with that.

Caroline:         You would, because obviously, as we know, anybody who has substance abuse issues, that is a disability as well. So again, we may need to be supporting that person, etc. 

                        However, if it's an employee who went to a concert and couldn't get up the following day because they were out late, or whatever the case may be . . . I think you have to take each of those differently in terms of your approach, and take them on a case-by-case basis. 

                        And again, it's back to "What does your brilliant contract of employment and your brilliant staff handbooks say?" which we're like broken records as HR professionals going back to. Ultimately, that's the benchmark for so much in terms of employment law. What does it say in the contract? What does it say in the staff handbook? 

                        You would be amazed still, Rolanda, how many people will say to me, "Caroline, you're not going to believe this, but Johnny is the only employee in the entire workplace that doesn't have a contract of employment and doesn't have a probationary period". 

                        Again, from a risk and compliance point of view, just doing an HR audit. It's a good time of year to be just, again, doing a health check to ensure that you're legally compliant and also just reviewing that contract and handbook.

                        Again, there's so much employment law legislation that is updated in 2020. And also now into 2021, we've got the statutory sick pay, as we know, which is imminent. We expected it would be in place from January 2022. But obviously, it's coming. Hopefully, we'll have it soon. So again, all needing to be updated in our contract and in our handbook when it comes. 

Rolanda:          Okay. Maybe the last one on probation. You talked about duration. You sort of said 11 months. Someone is saying that their probation period is 12 months. Now, there might be a wee bit of risk with that.

Caroline:         So the reason it's 11 . . . Again, I will always give the client, "Well, the reason for 11 is in case you have good intentions of trying to get it done before 6 months and you don't, and then it lapses and you haven't extended it". 

                        But for me, 11 should be the max, because if it's the case that the employee, for whatever reason, failed their probation in Month 11, they will be required to work their notice potentially, etc., and that then could mean that they go over the 12 months' service and the Unfair Dismissal Acts apply. 

                        I will try and keep it at 11 at the maximum and being aware of that European directive that will require us to have it at 6 in the future. But that's not coming any time soon imminently. But it's something just to be aware of. So I think 11 should be the maximum for the reasons I've outlined. 

Rolanda:          Yeah. And you mentioned sick pay there and somebody else asked a good question. I think it's worth just emphasising the point about there are the conditions that you need to have to be entitled to the statutory sick pay. Remind us, Caroline, just of the service requirement for statutory sick pay. 

Caroline:         So it's a bill at the moment, which we expected, obviously, to be transposed at this stage. And in the current bill, it's 13 weeks' service requirements. There was talk it was going to be . . . and in the initial draft, it was going to be more, but in the most up-to-date bill, it's been reduced to 13 weeks.

                        However, what we're advising is put a mention in your . . . If you're drafting contracts now, will you remember to go back and update the handbook to let the person know that statutory sick pay applies? So you're going to be ultimately updating and communicating to people retrospectively. 

                        There's no harm in putting into your contract, "When the new statutory sick pay comes into effect, it will apply to your employment with us". At least there's a mention of it, and then you can update your handbook to reflect the rest of the information and then update your new contracts going forward.

                        It's a part of the bill that you will be required to update your contracts, but it's something that we will definitely mention, Rolanda, once it does come in to finalise everybody with the details. 

                        And if there's a lapse between when we do a webinar and it coming in, most people are probably on our newsletter list at this stage, but that will be one of the ones we'll do a blitz. The email address is on the screen there if anybody wants to drop us an email to be added to our newsletter list. 

                        It's one, Rolanda, that has caused serious confusion for people, because many clients were under pressure to try and get it in for 1 January expecting that it would be signed into law the last few days of December, which happened with legislation last year, for example. But it's hopefully imminent, I think, at this stage.

Rolanda:          Okay. Someone has just asked a question here about a more sort of informal approach to performance management where they meet four times a year, and I'm taking from the question that they don't particularly keep notes of those meetings. Would you advise that they do have some sort of record of the informal performance management meeting?

Caroline:         I love the fact you're doing performance management, and that you're doing it four times a year is brilliant, but all I would advise to really make it excellent is to do a follow-up email afterwards. And the email can be as informal as, "Hi, Caroline. Thanks for meeting me today. Delighted to have this time to discuss your overall performance and how you're doing. And the following are a summary of the key points we discussed and agreed". 

                        Obviously, to make it even better, you're going to be setting smart objectives that are measurable and time-bound, but at least by sending the email to the person, it's time and date stamped. 

                        And what it does is it avoids any ambiguity where someone could come back and say, "Well, look, I told you I was really unhappy, and my manager wasn't supporting me and you never did anything about it". At least you can go back and say, "Well, no, look, we met and I said if I can support you. Remember, I did the follow-up email as well about that". 

                        So you can't beat the paper trail. In HR and in employment law particularly, if things were to take a turn, that's what we're going to be relying on because oral evidence is always . . . I won't say always. I will say generally is trumped by written evidence on the basis that it's time and date stamped.

                        Obviously, then, oral evidence will back it and support that as well and add the flavour and the nuance, etc. But the paper trail, I think it's definitely worth adding that step in there.

Rolanda:          Okay. Someone is just asking a question. So if you're managing performance during the probation period maybe and it's not great, should you write, and it could be a letter or it could be an email, just to confirm to the employee that things aren't going so well and that their employment might be at risk if they don't improve?

Caroline:         One hundred per cent. And to me, I would say forget doing the letters. Try and do email for everybody. The majority of people now get paid via electronic means, etc. And email is time and date stamped, and there's no issue of "Did the person get it or not?" etc. So if you can, try and do email.

                        I would say 100%, if there's any issue at all, you're starting to go down the road of improvement, or corrective action, or their role being at risk. Flag that early. And again, that will be clearly outlined in the clause in the contract. So again, you're referring them back to that to say, "Look, we're meeting and a requirement to improve is key to your success and passing your probation in line with that contractual clause".

Rolanda:          Okay. Now, we are running out of time here, but I'm just going to . . .

Caroline:         As usual, Rolanda. As usual. Time always beats us. 

Rolanda:          I know. We could go on for another half-hour, to be honest. Someone has just made a lovely comment to say, "Do you realise your mirror is giving you a lovely halo?"

Caroline:         Thanks very much.

Rolanda:          We always do things very spiritual, Caroline. And a follow-up to that statutory sick pay, I suppose, just to clarify. So if an employer has a more generous sick pay scheme, they could perhaps keep that until after probation, but they still need to meet the requirement of statutory sick pay after the 13 weeks, potentially, assuming that's what the law eventually says. Yeah?

Caroline:         Absolutely. For many, it will require kind of an update on what they have. Many, for example, have things like a waiting period, that you don't get sick there for the first three days, or you're not eligible until after you pass your probation. So we need to update the policy that's currently in place to meet the minimum standard of the statutory sick pay. 

Rolanda:          Okay. Thank you all very much for your questions, and I'm sorry we're not able to get to them all. We could, as I say, talk for another half-hour. 

                        Just moving on then, I just wanted to highlight two more things before we go. First of all, it's just we have a HR Symposium coming up on 31 March. For anyone who's interested, you'll find out more information. 

                        But it's been such an interesting two years with regard to HR, and so many things have changed in terms of the whole hybrid work. And then obviously we've got the draft remote working bill this week, which is interesting, I have to say. I thought there were some things in that that might raise an eyebrow. So those and things like that will be discussed at the HR Symposium, and you'll find out more in the follow-up email. 

                        And I mentioned at the outset that all of our webinars are turned into podcasts. So if you're out for a wee cycle or walk this weekend and you want to listen again to this, then you can pick it up on Spotify, Amazon, or Apple Podcasts. 

                        Hugs to my colleague Christine, who says she loves podcasts. I haven't quite worked that out yet. But those are there for anyone who wants to listen.

                        Finally, just our next webinar coming up then is on 10 February with Duncan Inverarity from A&L Goodbody. Duncan is going to have a bit of a discussion with us about the key case law that has come up in the last sort of few months really since the Annual Review of Employment Law. And that's on 10 February at . . . We haven't got time there, but it's usually around 11:00 a.m. 

                        Our next webinar with Caroline . . . I don't actually have the date on there, but it's in February, too, and we'll notify you of that. You'll get your usual email to warn you of that.

                        Thanks very much for your time today, Caroline. 

Caroline:         Thanks, everybody.

Rolanda:          What a lovely way to finish a Friday on a webinar with Caroline. I have to say I'm delighted. Have a great weekend. It's great to see you again. 

Caroline:         Thanks, everybody. Bye.

Rolanda:          Bye.