ERA Explained podcast: Unfair dismissal changes – The changing role of the line manager

Katie Wooller. Professional Support Lawyer, Burges Salmon (04:48)

Very comfy. They are, aren’t they. We’ve got very nice teal cushions behind us for anyone listening on the audio and they’re very comfy.

Kate Redshaw (00:56)

I’m impressed. Also, as I’m small, they’re making me sit up a little bit more, which I think is no bad thing. So, Katie, we say the role of the line manager is going to become increasingly important. I, and I guess we hope it will be because that’s what this podcast is about. But can we start by discussing why that is given that line managers have always, let’s face it, they’ve always had responsibility for managing the performance of their line reports and new recruits. So why is there a change to what they’re going to be needing to do?

Katie Wooller (01:23)

Yeah, you are absolutely right. The role of the line manager to look at that performance in those first few months in the probationary period is always sat with the line manager. What’s changing really is quite how important that probationary period is now that we’ve got or will have shortly, a six-month qualifying period for unfair dismissal. Because I think it’s fair to say to date it’s often the case that probationary period reviews have maybe drifted a little bit, sometimes being passed, employees have been passed through their reviews without maybe active decision-making as to, you know, actually are they up to scratch? Are they performing well in their role? And the number of times I’ve had conversations with HR contacts over the years who come to me a little bit frustrated when they’ve got a line manager after say nine, 12 months going, this employee’s, they’re just not, they’re not really up to scratch. And then the line manager sort of says, yeah, but they’ve never quite done this, they’ve never done that.

And those things weren’t picked up in the probationary period. And currently, legally, that doesn’t matter too much. But once an employee’s got unfair dismissal rights from six months, that’s going to matter a lot more.

Kate Redshaw (02:28)

Yes, no, you’re absolutely right. So unfair dismissal rights kicking in at six months. What then in terms of sort of practical actions do we think line managers are going to have to start to do?

Katie Wooller (02:40)

I think they’re going to have to have a really active think about what an employee or a new starter can be realistically expected to do and do successfully in their probationary period. So, if you’ve got, a four-month probationary period, potentially with a review of a month, what realistically can you expect that role, someone in that role to complete within that period of time? And that is obviously going to be dependent on different roles, different responsibilities, work streams, what’s coming in at this particular time. And there will be some roles where that’s really quite hard. If you’ve got someone where they work on quite long-term projects or four-month tenders for a bid manager, how are you going to assess that when they might not see something from start to finish within that probationary period? So, I think number one is making sure line managers are realistic in their expectations, and then they’re going to need to keep tabs on that and see how the employee is matching up to those expectations and communicate that to them, as well as, I know we sort of talked about this bit before, but as well as being really on it, on the sort of process side of things as well.

Kate Redshaw (03:46)

Yeah, so in terms of, guess what you mean by that is, you know, checking the diary appointments and knowing when somebody’s probationary period is up, whether they’re going to be extending, I guess when they’re going to hit that six month employment as well, that’s going to be another key date. And also, of course, because you did say, you know, it’s not uncommon for people to be saying after a year, actually, they’ve never been that great, to be, if they’re having those conversations, to be monitoring performance and writing that down documenting it, which they just may not be in the habit of doing.  But I think on that, what we also need to remember, because there’s been a whole load of focus on probationary periods and the importance of line managers monitoring and how long should probationary periods and so on be, I think the other point which we mustn’t overlook is the fact that actually employees are going to have rights from six months. So, line managers have got to be even in some ways even more on it.

Once an employee has kicked over that six-month period to make sure that they are looking out for what they’re up to.

Katie Wooller (04:55)

Yeah, you’re absolutely right. There has been a lot of focus on probationary periods, those first few months of employment. But the reality is that the majority of employees are going to get past the six-month mark, are therefore going to get unfair dismissal rights once we’re into 2027. And I think there’s two bits to that really for line managers. One, it’s helping them understand that or see the benefit really of active management of the probationary period for people who get past that six-months as well. And there’s the practical piece to that, if you manage a probationary period well, you’re setting someone up for success because you’re being really clear with them on what is expected of them. You’re motivating them by recognising what they’re doing well. And in reality, that then means that you’ve got someone who is sort of, you know, hits the ground running really in their new role.

On the flip side, if you’ve got someone where it’s not quite working out so well, you’ve got your paper trail to say, well, we’ve always sort of had concerns about this aspect of your performance. And then as you say, if there are concerns after the six-month period, what line managers needs to be really aware of is employees are going to have full unfair dismissal rights. So, they’re going to need to be sort of going through that sort of full performance process if it’s sort of performance concerns. So, there’ll be very conscious of that- they’ll be used to doing those sorts of processes at the moment, but they’re going to have to do them sort of sooner in the employment process.

Kate Redshaw (06:27)

Yeah, so that’s some of the line manager’s responsibilities, but I guess what’s the role for HR in this Katie?

Katie Wooller (06:36)

Good question. I think in reality it will depend on resourcing and depend on the organisation because a lot of this has got to still sit with line managers because they’re the ones who can see on the ground how an employee is performing. I think there’s lots and lots of ways in which HR can support line managers.

So one will be helping them on the process side of things, making sure they’re really on it, as we said, with those different dates and processes around documentation. Another bit I think we’ll talk about potentially a bit later is around sort of training and upskilling of managers. But one of the bits I think would be really crucial is to be carefully reviewing recruitment processes. Because if you make sure that you’re, as far as you can, you’re getting the right people through the door then it makes all of these processes we’re talking about for probationary periods so much smoother. So I think having a fresh look really at what your recruitment processes are from start to finish, where you’re advertising, what the assessment process is, what the sort of application review process is, having a careful look at that I think is really crucial because that will sort of help to set everyone really off on the right track.

Kate Redshaw (07:54)

Yes, I mean, it’s interesting you say that, because I remember, do you remember after the pandemic, it was a really tight labour market and we certainly were aware of clients who were saying that, you know, they’d recruited really people who were not necessarily of the standard that they would have  usually taken on, but they were desperate for people. So, we saw a lot of people having to sort of, I guess you’d call it recruit in haste, repent at leisure kind of thing.

At the moment, you’ve got a two-year window. If you take somebody on who you wouldn’t normally recruit just to get you over a hump on the basis that, you know, if you need to let them go, if it doesn’t work out, the risk is relatively low. Of course that is changing. So, there’s going to be a need to wean line managers off that kind of, “oh, I just need to get somebody in” because it’s going to be much more difficult if they’re not stringent about who they’re recruiting to get to a dismissal.

Katie Wooller (08:51)

Yeah, I think that’s another piece is just making sure managers are really aware of the importance of making the right decisions when it comes to hiring because of the ramifications if they don’t.

Kate Redshaw (09:03)

Yeah. So, you talked, Katie, you alluded to the role for HR in upskilling line managers. Can you expand a little bit more on that?

Katie Wooller (09:12)

Yeah, I mean, I think line managers don’t need to know all of the ins and outs of the legal changes themselves, and often they may not be sort of that interested in all the nuances of it. What’s really key, I think, is that they understand the stakes really. So that they understand that we’ve got far more employees who are going to have unfair dismissal rights much sooner in their employment. And particularly where you’re talking about high earners or anyone in perhaps say like a regulated sector where the compensation cap removal means that the stakes are just going to be so much higher, which means all of the stuff we’ve talked about around managing probation, managing people past that six month period is, you know, it’s the stakes of getting it wrong are higher. So, it just sort of underlines the importance of getting that right. And then there’ll be obviously probably some soft skills sort of pieces as well in terms of how to manage probationary periods successfully and set people up for success in those first few periods. So, I think there’s plenty to help line managers with.

Kate Redshaw (10:22)

Yeah, and I suppose brushing up on kind of reminding people what your processes are, your performance management processes, and as you say, having those difficult conversations maybe, because that’s why a lot of these conversations don’t happen, is because people feel awkward holding them.

Katie Wooller (10:38)

Yeah, yeah, and I think we as lawyers, we tend to move towards process quite quickly, but actually a huge amount.

Kate Redshaw

You like a process, particularly.

Katie Wooller

We do love a process. But even I will accept that actually a huge amount of this is good people management. If you can manage your people well from day one, you’ll significantly reduce the risks that these changes are going to bring about.

Kate Redshaw (10:44)

Yeah, no, absolutely. So, Katie, before we finish up, have you got any top tips on, you know, I guess how employers might reduce the risk of claims? It’s a tricky question so I’m going to give you a little bit of a little bit of an example to help you. So, I remember, this was years ago now when the unfair dismissal regime was still at two years and so on… but we had a client who was getting a lot of claims and what they did was they changed their processes so that any dismissal could only be done if HR had been involved in the process. So previously line managers had been able to- had authority to dismiss and then they changed that. So HR had to have been involved in the process and their claims dropped like, you know, really dropped very significantly. Now I appreciate that’s not going to be possible for every organisation, but if you’ve got anything sort of similar that might just help mitigate against the risk of claims.

Katie Wooller (11:57)

Yeah, I mean, think that, as you say, where capacity and resourcing allows, I think having some degree of escalation or sort of moderation, whether that’s via HR, the line manager’s line manager, is helpful just to give that sense check of, you know, is this, am I along the right lines? Obviously, the decision has to sit with the line manager themselves, but having someone to bounce off or some sort of sense of sort of someone there to help check consistency is.

Kate Redshaw (12:25)

I was just going to say it’s consistency really isn’t it.

Katie Wooller (12:27)

Yeah, and I think particularly when you come to performance, I think consistency can be helpful to have someone looking at that more broadly. The other bit, which we’ve already talked about a bit, is around helping line managers with sort of understanding the risks. And one bit I wanted to mention on that is there’s a bit of a bear trap when it comes to fixed term contracts.  I think it’s important that if your organisation uses fixed term contracts, that you make sure that line managers understand those risks in relation to unfair dismissal. The point being that the expiry of a fixed term contract is a dismissal.

Kate Redshaw (13:05)

I know, that’s such a tricky, it’s so not obvious, think, isn’t it? It’s sort of counterintuitive, that point.

Katie Wooller (13:11)

It’s where you have real, you know, can have real sympathy with line managers and kind of think, but it’s a fixed term contract. It’s all- and it’s come to an end. So, and that’s not, this isn’t me trying to sort of scare people away from using them or sort of from the fact that quite often the purpose of it will have come to an end. It basically is about understanding that where someone’s on a fixed term contract for six months or more, they’re going to have unfair dismissal rights. So, the importance of being clear at the outset on why that it is a fixed term contract. Is it family leave cover, is it for a particular project? And then communicating towards the end, assuming it is going to expire, being clear with the employee about that all the way through is going to be a lot, is going to be much more important than it is now because typically most fixed term contracts aren’t over two years.

Kate Redshaw (13:58)

No. So people just aren’t in the mindset are they.

Katie Wooller (14:01)

So, people just aren’t really thinking of it in that way. So I think that’s a little, as I say, bear trap or something that an employer could easily sort of trip up on if they weren’t careful.

Kate Redshaw (14:11)

That is indeed a bear trap. Right, Katie, our time is nearly up. So, I’m going to attempt to summarise your wisdom, your little pearls of wisdom there. So, point number one, I think, really, and I suspect we said this in the last podcast, is review your recruitment procedures. So, it’s really important to try and reduce the risk of poor hiring decisions because then you are- that is I suspect in some ways the biggest way of mitigating risk in all of this is to get the recruitments right in the first place. Secondly, upskill your line managers so that they understand the implications of the changes in the law and what that means to them on the ground and their role in it.

Slightly more mundanely, but very importantly, just thinking around, you know, calendar appointments, diarising, how can you help line managers in managing those so that key dates don’t just get forgotten about because somebody’s on holiday or whatever it happens to be. Encouraging, this goes back to something you were saying right at the start, Katie, I think is encouraging line managers when they’re doing that assessment in the probationary period to really think about what criteria, realistically, they can expect their recruits to be doing and doing well and to what standard and so on so that we’re not setting people up to fail by expecting too much too soon. And then I think finally is just thinking about maybe reviewing your processes to see what other safeguards or tweaks you might be able to make to those processes just to reduce that risk of dismissal.

So, that’s it. Thank you, Katie. That’s it for this episode. Thank you very much, everybody, for joining us.  Our next episode, we’re going to be looking at the impact of the removal of the compensation cap and in particular what that might mean for your settlement strategies and also in respect of high-risk dismissals.  Meantime, you can find episode one of our podcast mini-series on our Employment Rights Act hub.

Alongside all sorts of other information about the Employment Rights Act and that is available on our website, so look out for that. So, until next time, thanks so much for joining. Goodbye. Thank you.