Probation Policy equality impact assessment

Probation Policy

The purpose of this policy is to:

• Set out the process that will be followed by line managers and new entrants to COPFS who are required to undertake a 9-month probationary period. It includes information on the attendance, conduct and performance standards that must be met to successfully pass the probationary period.

Anticipated outcomes of the policy include:

• Successful employee induction to COPFS
• That the employee will be able to meet the standards of attendance, conduct and
  performance expected within COPFS.
• Confidence that employee is a good fit for COPFS, and vice versa.

We will comply with all relevant employment
legislation (e.g., the Employment Rights Act 1996, the Flexible Working Regulations 2014, and The Equality Act 2010).

Lead EIA Officer:

Head of HR Employee Relations Team

Team/function:

HR/Business Services

Email address:

DiversityTeam@copfs.gov.uk

Others involved:

HR ER Manager

Date assessment completed: 

February 2024

Assessment record authorised by:

Deputy HR Director

This new policy was fully assessed for any equality impact based on the General Equality Duty of the Equality Act (2010).

The purpose of probation is to provide a period for assessment of whether the new entrant is a good fit for their job role. Confirmation of their appointment is subject to them completing a probationary period satisfactorily. The length of their probationary period will be stated in their contract of employment. During their probation, they are expected to establish their suitability for the post. If they do not complete their probationary period satisfactorily, it may lead to their appointment being terminated.

The current Probation Policy has been in place for several years and is no longer fit for purpose as it refers to an HR Policy (Attendance Management) which has now been replaced and the replacement policy (Maximising Attendance) doesn’t fit the requirements of probationers. The processes outlined in the current policy are not easily followed. The policy therefore requires to be reviewed and updated.

National Evidence: The reason COPFS uses a probationary period is to trial the working relationship to see if the new employee is right for the business. It is used to assess whether the new entrant is demonstrating and applying the skills and behaviours as identified during the interview process. Probation periods are
important as they help COPFS ensure it has made the right recruiting decision, whilst enabling the organisation to act when it believes a probationer is unsuitable for the role.

Probation Periods UK | Law & Employee Rights Guide - Safe Workers is one of many reference points explaining the need to have managed probation periods. It states ‘Employers will often carry out an application and interview process. However, you can’t always tell from an interview how an employee will perform in a role, or whether they will fit in with an existing team. A probationary period lets both employee and employer see if the job is a good fit for both parties.’

How to manage probationary periods | How to | Tools | XpertHR.co.uk advises:

From 6 April 2020, the written statement of terms and conditions of employment (required under s.1 of the Employment Rights Act 1996), must also include the probationary period, its length and any conditions attached to it. Employers should also spell out that the probationary period may be extended and clarify the position around contractual benefits in the event of an extension (see Extending the probationary period)

Starting staff: induction (acas.org.uk) states:

Many employers understand the value of settling a new employee into their role in a
well-organised induction programme. Induction is a vital part of taking on a new employee.

Age:

Age can affect employees in relation to physical and mental health and cognitive ability.

Thinking skills change throughout people’s lives and most people experience a relatively small amount of decline in some of their thinking skills. This is known as ‘normal cognitive ageing’. The thinking skills that are affected by normal cognitive ageing are:

• Short-term memory
• Reasoning
• Speed of Processing

There may be occasion where the natural ageing process impacts on an employee’s work performance/ ability to carry out all duties relevant to the role, or the ability to meet required attendance standards. Should this be the case, employees will be encouraged to discuss with their line manager and Occupational Health as to whether there are any reasonable adjustments that could be
implemented to support the employee at work to meet the required standards and consideration given to completion of a Workplace Adjustments Passport.

Risks of discrimination:

COPFS roles are diverse with a small number of roles requiring physical exertion and all roles relying on mental dexterity. We do conclude there is a risk that people of different age groups could experience disproportionate outcomes in respect of completing their probationary period. A lack of local equality profiling data means that this risk cannot be either established or discounted.

A reference within the Probation Policy/Procedures to Age diversity and how / why different age groups learn differently would assist in promoting equality of opportunity to COPFS employees of different ages.

To ensure COPFS are supporting people in all equality groups during their probation period, a more detailed analysis of the progress of new starters by ‘Protected Characteristic’ is essential.

Disability:

There may be occasion whereby individuals with disabilities may be impacted if their condition is such that it impacts on their performance/ ability to carry out all duties relevant to the role, or the ability to meet required attendance standards. Should this be the case, employees will be encouraged to discuss with their line manager and Occupational Health as to whether there are any reasonable adjustments that could be implemented to support the employee at work to meet the required standards and consideration given to completion of a Workplace Adjustments Passport.

Should this process cause an employee to suffer from stress or anxiety or if it exacerbates pre-existing medical conditions, individuals can access additional help through their manager, OH, TU, My Wellbeing Space etc.

Risks of discrimination:

Disability is specifically mentioned in the revised probation policy procedures as a reason to consider adjusting the probation management process. We recommend that the wording in the policy is expanded to include use of specialist support if needed. This is important given that disability can be very
varied and include people who are neurodiverse and who may typically have a
wider variety of different learning styles and pace. With this support in place and the availability of profiling data, we will be able to carry out an effective review of how this policy impacts on this equality group. Once again, we conclude a risk of adverse impact in that people who have disabilities could, on balance, experience disproportionate outcomes in respect of completing their probationary period. A lack of local equality profiling data means that this risk cannot be either established or discounted.

A probation period is typically a good tool to facilitate equality of opportunity or the ‘same chance’ to people by considering the potential differing needs of employees. The Probation Policy/Procedure explicitly states that reasonable adjustments should be considered in respect of Disability.

It would be useful to discuss the detail of this policy/procedure with the Equality Ambassadors for Disability to explore ways COPFS can measure its impact on an ongoing basis.

Gender reassignment:

Risks of discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Should an absence from work be required due to gender reassignment, this period of absence will be discounted when considering whether an employee has reached satisfactory levels of attendance.

Pregnancy and maternity:

Risks of Discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Should a sickness absence from work occur due to a pregnancy related illness, this period of absence will be discounted when concluding whether an employee has reached satisfactory levels of attendance.

Should an employee go on maternity leave during their probationary period, their probation will be concluded prior to their leave – i.e., it will not be ‘paused’ whilst they are on maternity leave. Any training that has not been completed during the probationary period will be revisited on the employees return to work, along with any refresher training that may be required.

Race, colour and nationality:

Risks of discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Religion:

Risks of discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Sex / Gender:

Risks of Discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Sexual orientation:

Risks of discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Marriage and civil partnership:

Risks of discrimination:

We conclude there is no reasonable evidence to suggest this policy could adversely affect employees on the grounds of this ‘Protected
Characteristic’.

Probation periods aren’t covered by any specific employment law. It is an obligation
under our terms and conditions of employment for employees to complete a probation period. It is also relevant to observe the Equality Act 2010 during the probation period for all employees. It is important that where an individual does not complete their probation and is dismissed that the reasons for this are not discriminatory.

All staff, whether permanent or on a fixed-term contract, are subject to a 9-month probationary period. Therefore, all employees have the same principles applied to length of probation period regardless of job role, previous experience, or any protected characteristic.

However, COPFS acknowledges that people who share / do not share, certain ‘Protected Characteristics’ may, on balance:

• Experience different performance outcomes – for example, older workers and disabled workers.
• Experience compound discrimination or intersectionality i.e., where a person has
  one or more characteristic and may be subjected to consequentially greater levels of disadvantage.
• Have greater difficulties following or complying with the written requirements of a workplace policy e.g., articulating a reason for poor performance in writing, taking part in one-to-one meetings, following a reporting flowchart etc.
• Experience higher levels of anxiety in respect of performance management.
• Feel less comfortable discussing their performance with people of the opposite Sex.

Section 9.4 of the Probation Procedure states:

“The manager must consider the probationer’s individual circumstances and requirements when considering reasonable workplace adjustments. Up to date Occupational Health advice should be considered before a Probation Decision Meeting where dismissal is a possible outcome. This will ensure all opportunities to
enable the probationer to meet the required standard and/or remain at work have been explored.”

We think this is a key statement outlining the need for line managers to take account of individual’s personal circumstances during the initial stages of working with COPFS. 

This policy/procedure has been developed in consultation COPFS recognised Trade Unions, PCS & FDA who represent all staff throughout the organisation.

In addition, as this is an internal policy, COPFS has only consulted with internal groups. These include:

• The HR Function
• Heads of Business Management (LC, SCG, Operational Support)
• Equality Ambassadors representing all protected characteristics.

Review of data from COPFS Equality Mainstreaming Report, 2021 shows:

Gender

The overall proportion of male and female staff remains similar to the 2019 survey. In Scotland 51% of people are female and 49% are male (Scotland’s Census 2011) whilst COPFS gender demographics are: 71.3% of staff are female, 27.6% are male. 1.1% of staff chose not to disclose their gender.

Age profile

Age group broken down by work pattern

The majority of our staff, 47.68% are aged between 30 and 49 with 8.01% over 60
years. However, all age ranges are well represented amongst our staff.

A greater number of COPFS employees overall are female. The breakdown of ages of females in COPFS (see above) suggests that we have a high percentage of females who are of perimenopause or menopause ages.

Research (www.nhsinform.scot) suggests that symptoms can have a detrimental impact on performance. COPFS should consider this when reviewing performance during the probation period.

‘Menopausal women are the fastest-growing demographic in the workforce, so it's important now more than ever to be able to speak openly about menopause at work. Menopause can affect a woman's working life. Sometimes menopausal symptoms or working conditions can impact your ability to concentrate or carry out your role to the best of your ability. In a survey of 1,000 adults in the UK, the British Menopause Society found that 45% of women felt that menopausal symptoms had a negative
impact on their work and 47% who needed to take a day off work due to menopause symptoms say they wouldn’t tell their employer the real reason. Many women have
said that they often find managing their menopause symptoms in the workplace very
challenging. Coping with symptoms in the workplace can be hard, especially as many women find it difficult to talk about menopause at work.’

Disability declaration by working pattern and grade

5.15% of COPFS staff have declared themselves as disabled, however 352 of 1301
respondents said they did have medical conditions which have lasted over 12 months with 21.31% of the 352 considering themselves disabled. In the Scotland 2011 census, 19.6% had declared themselves as having long-term (over one year) activity-limiting health problems.

Neurodiversity at work (cipd.co.uk)

Discusses ways to manage different learning styles and encourages flexibility in workplace development approaches generally, it specifically advises that during the initial stages of employment:

‘Information communication during the onboarding process can be substantial – and
potentially overwhelming – yet at the same time fail to inform new hires of important aspects of the workplace. As far as possible, information should be comprehensive, provided in advance, and offered in a variety of formats. It’s also important to highlight what may appear ‘obvious’ aspects of the organisation’s culture and conventions, typical work hours and patterns, conventional times for breaks, typical communication channels etc.

Ethnicity

3.21% of staff identify as Black or Minority Ethnic with 3.11% preferring not to provide information relating to their ethnicity. Figures for white background have decreased by 0.23%.

Meeting the BITC Race at Work Charter | CIPD

‘More employees from ethnic minority backgrounds prioritised career progression as
an important part of their working life compared with white British employees. Ethnic
minority employees are also more likely to say that their identity and background influences the opportunities they are given. The report also found evidence that ethnic minority employees feel the need to alter some aspects of their behaviour to fit in, and censor how much they tell colleagues about themselves and their personal life. Transparent career paths and seeing role models that have progressed would help boost career advancement, according to the report. Managers underestimating employees’ career ambitions and making assumptions about their career paths were also reported as hindrances to advancement.

Religious belief profile

28.56% of our staff have declared that they do not follow any faith or belief system. The next two most popular answers remain the same as the previous survey with the most popular being Church of Scotland at 19.17% and Roman Catholic at 16.52%. 6.17% have not answered this question previously and 10.05% preferred not to answer.

A religious related activity such as Ramadan and fasting may have an impact on performance during probationary period, and therefore may be a consideration for how this policy is applied.

In considering the impact of fasting for Ramadan, the Chartered Institute of Personnel and Development (CIPD) HR Inform in March 2022 stated:

“A restricted intake of food may have a negative impact on productivity levels, especially towards later working hours. Organisations should take this into  consideration where there are any temporary drops in performance for Muslim employees. Muslim employees should not be treated less favourably because they are observing Ramadan, and this extends to the effects of fasting. To do otherwise could amount to discrimination. Instead, organisations can proactively consider altering shifts or allow regular short breaks if employees are lacking energy.”

Cognisance is taken in the policy of personal circumstances that may impact during the probationary period, so issues a colleague has that may be indirectly linked to a religion or belief should be mitigated through the application of this policy.

Marital status profile

46% of our staff have declared they are married or in a civil partnership.

There is no external evidence relating to this equality group and probation.

Sexual orientation

The numbers of declared gay, lesbian, bisexual and other sexual orientations recorded with our HR system are above national average as recorded in the 2019 Scottish Household Survey – 2.65% compared to 1.7%. We note that 85.31% of our staff declared that they were heterosexual with 10.71% of our staff choosing not to declare this information. The number of staff who have not declared this information has reduced by 3.49% since the last survey.

There is no external evidence relating to this equality group and probation.

Pregnancy and maternity

How to manage probationary periods | How to | Tools | XpertHR.co.uk advises:

‘Issues related to pregnancy and maternity may arise during the probationary period. For example, an employee's performance may be affected by their pregnancy and/or a pregnancy-related illness, or maternity leave might start before the probationary period ends.

Under s.18 of the Equality Act 2010, employees are protected against unfavourable
treatment because of: their pregnancy; an illness suffered due to pregnancy; and reasons related to taking maternity leave. Employees can also claim indirect sex discrimination in connection with pregnancy and maternity.’

Feedback from the Equality Ambassadors network identified the following issues:

• Employees may not wish to disclose disabilities or other issues associated with protected characteristics e.g., gender reassignment.
• Where an employee isn’t meeting work performance standards consider whether they may have a disability which is affecting their performance. Consider reasonable adjustments to their job role or alternative job roles that may be more suitable.
• Carers – no reference to Carers Policy in the EQIA – the EQIA looks at the impact of the policy on the protected characteristics included in the Equality
  Act. The scope of the COPFS Carers Policy is all employees which includes
  probationers therefore provision for carers leave and other support is made for probationers in this policy.
• Menopause – referred to in the age/sex categories of the EQIA. The scope of the COPFS Menopause Policy is all employees which includes probationers therefore provision for support is made for probationers in this policy.
• Consider paternity leave as well as maternity leave as some parents may
  choose to share maternity/paternity leave

There have been many changes made to the initial first draft of the Probation Policy and Procedure following consultation with TU representatives.

The policy will be reviewed every three years, or earlier, if necessary, to meet legislative or business requirements.

Send this completed form to:

DiversityTeam@copfs.gov.uk

Further information:

For further information about this impact assessment, please contact:

Equality Team
Policy Division
Crown Office
25 Chambers Street
Edinburgh
EH1 1LA

Alternatively send an email to DiversityTeam@copfs.gov.uk

Assessment records can be made available in alternative formats or languages on request