Probationary Periods – A Guide for Employers and Employees

We frequently receive queries from employers and employees in relation to probationary periods and their respective entitlements and responsibilities. I have set out some of the main points which employers and employers should have regard to when probationary periods are involved.

Contracts of Employment can allow for probationary periods and these may be extended for up to one year.  The purpose of a probationary period is to see how an employee is getting on in the job, whether they are a right fit for the role and whether they are suitably qualified for same.  If it is felt that things are not working out with this new employee, the employer will then seek to let the employee go either during or at the end of the probationary period.

There is a misconception that employees on probationary periods can be dismissed easily once they are still within the probationary period. However, any employer must still have regard to fair procedures and the principles of natural justice in letting any employee on probation go.

Employer

The employer should seek to ensure that the contract is worded clearly as to the ability of the employer to dismiss the employee at the end of the probationary period. The probationary period should be clearly defined and cannot be more than 1 year. If the employer feels that they may wish to seek to extend the period, this should be provided for in the contract. The notice period should also be specified.

I would advise any employer to also have a Probation Policy in place which deals with the issues of performance, conduct and suitability for the role and which notes how matters will be handled during the probationary period. It should also provide for regular reviews and feedback to the employee. The employer should retain all notes of such reviews and feedback. The policy mentioned above should be similar to a Disciplinary Procedure and follow the Code of Practice on Grievance and Disciplinary Procedures and the principles of natural justice and fair procedures. This policy ought to be incorporated into the employment contract and a written acknowledgement of having received and understood same ought to be received from the employee.

Employee

If an employee is let go during or after the probationary period and feels that their dismissal was unfair, there are a number of options open to them. However, relief under the Unfair Dismissals Act 1997-2007 will not be open to them as they will not have the required service. There are some exceptions to this; such as if the employee is part of a protected class and in those circumstances, it would not be necessary to have the 1 year service to be able to claim under the act.

There are three other options open to employees who do not fall under the exceptions mentioned above. These include:

1.       A claim for unfair dismissal under the Industrial Relations Act 1969 as amended. It is important to remember that the decision of the Labour Court under this legislation is not binding and very often employers do not comply with it. The only positive in such circumstances for the employee is having the recognition that they were unfairly dismissed in case they were asked in future what happened in their previous employment.

2.       An action for breach of contract or wrongful dismissal in the civil Courts.

3.       A claim under the Employment Equality Acts 1998-2004. If the employee  feels that they may have been let go because of one of nine discriminatory grounds protected under this act, they may be able to bring a claim.

I would advise employees that they should  keep a record of their progress during the probationary period, feedback received from their employers and any difficulties that they might have encountered and whether or not the employer was made aware of same and their reaction/response to same.  It is remarkable how insignificant a particular conversation or date might seem at the time it happened but it could mean everything at a later stage should relations break down between the parties.

If you would like any further information or advice on this topic, please do not hesitate to email me  at katie[at]brophysolicitors.ie  and I will be happy to advise.

Katie  Nugent

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