Probing Probation.

One of the more interesting aspects of my job involves the conversations I have with people about their understanding of legal provisions, and watching the mist clear when they realise that something they thought was really complicated is actually quite simple.  Or the realisation that something that they’ve been doing for years is actually not their best option.  Or even just that they have been using words or terminology incorrectly or hadn’t fully understood what it’s purpose was.

Many misconceptions arise because people believe what they read.  Newspapers, for example, are fond of using phrases like “common law spouse” and we all know what they mean, but in law, it has very little (if any) relevance.  It doesn’t matter how long you’ve lived together as a couple, if you are not married, you do not have any automatic statutory financial protection if you split up.

My conversation with a client today involved the use and relevance of a probationary period in an employment contract which he was certain that he wanted (because everyone has them, apparently) but his inability to explain why this needed to be in (other than because everyone does it, apparently).  Eventually he told me that he believed that having such a provision meant that it was easier to dismiss the employee during the three month probationary period than, say, in month four, even though the notice period would remain the same at all times.  When I explained that an employee does not gain statutory protection until they have been employed for two years, he realised that the probationary period was irrelevant, and not only kept his costs down, but removed another layer of administration from his office who no longer have to review employees strictly at the 2.5 month anniversary to make sure that probationary time frames were complied with.

Another similar (and regular) conversation involves damages.  I often talk to clients about contracts that have been breached, for which the remedy is damages, but it’s interesting to see their comprehension expand when I go on to explain that the wronged party still has to prove that they have suffered a loss, and that they have taken all reasonable steps to mitigate those losses.  Simply because there has been a breach does not automatically give rise to a claim.  If we have a car accident, but there is no damage to your car, then no matter how bad my driving is (it isn’t actually) you still have no claim against me.  The same is true of contract disputes, such as if an employee leaves without working out their notice.  No court is going to force them to return and finish off what they were doing, but you could go after them for your losses.  However, the burden of proof is going to be on you to show that you did actually suffer a loss, and that you couldn’t remedy that loss in any reasonable way.  If you had to hire a replacement to do their job, then your losses are not the cost of that replacement, but the EXTRA cost of that replacement.  You may say that you had to incur recruitment fees, but you would have had to have done that at some stage anyway, either now when they walked out, or in a few months’ time if they’d worked out their notice.  You may say that salaries have gone up, but again, you’d have had to have paid that extra eventually, so we are only really talking about the extra between the day the replacement started, and the date they would have started if your employee had worked out their notice.  And whilst it may sound like I’m being negative in discouraging you from pursuing the claim, I like to think I’m being commercial in giving you sensible advice to avoid you wasting time and money on claims that are often futile.  That doesn’t mean that all damages claims are without merit, particularly in employment terms.  It just means that you should pick your battles and save your resources (both in terms of time and money) for more worthwhile cases.

Fortunately you don’t need to rely too much on the popular press for legal advice, because you can always call me!

Kleyman & Co Solicitors.  All your legal questions answered!