EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT – The Probation Period – What Employers need to know
It is common practice and indeed best practice, for Organisations to use a probationary period at the commencement of employment in order to assess the suitability of a newly appointed Employee, and to assist their integration into their role and the Organisation.
Employers should ensure that as part of a contract of employment being issued to an Employee, reference is clearly made to the details of the probationary period and process to apply. A Probationary clause should reference:
The initial number of weeks provide an opportunity dialogue between the Manager and the Employee with regard to expectations regarding performance, conduct and attendance and to identify supports to be implemented to support the Employee’s ability to settle into the role and the Organisation.
The initial number of weeks also provide for an opportunity to map out and diary key probation review meetings with the Employee and ensure the individual is aware of the probation review process to be followed. Key elements of the probation review process can include the following steps:
Where there are serious misgivings with an Employee’s fit in the Organisation or their role, then the employment relationship may be terminated during / or at the end of the probation period.
Employees who have less than 12 months continuous service with an Employer, including Employees on probation, are not entitled to bring claims under Unfair Dismissals Acts 1977 to 2015. However, an entitlement to fair procedures and natural justice for all Employees regardless of service applies.
The requirements regarding the dismissal of an Employee on probation generally depend on the terms of the Employee’s contract of employment and applicable policies. If the contract provides that the disciplinary procedure will not apply to Employees on probation, an Organisation is not contractually obliged to follow the full disciplinary procedure prior to dismissing an Employee on probation. If, however, the contract provides that the disciplinary procedure will generally be followed in respect of all dismissals and does not make any exception for the dismissal of an Employee on probation, arguably, the Employer is obliged to follow the disciplinary procedure prior to dismissing the Employee.
It should be noted that the above is only applicable in circumstances where an Employee has not been employed for more than 12 months. It is recommended that probationary periods should not extend for a period of greater than 12 months. The period of 12 months includes any applicable notice period on termination.
It should be noted that Employees (regardless of service) can bring a complaint to the Workplace Relations Commission (WRC) under section 13 of the Industrial Relations Acts 1946 – 2015 if they have a grievance against their Employer about their treatment. Recommendations under the Industrial Relations Acts 1946 – 2015 are not binding on Employers, however, the parties are expected to give serious consideration to any recommendation.
In addition, Employees with less than ones years continuous service are afforded protection arising out of dismissals by reason of one or more of the nine discriminatory grounds as outlined under the Employment Equality Acts 1998 – 2015 and may bring forward a claim to the Workplace Relations Commission.
Employers should ensure that as part of a contract of employment being issued to an Employee, reference is clearly made to the details of the probationary period and process to apply. A Probationary clause should reference:
- The duration of the probationary period
- The right of the Employer to extend probation period, if deemed appropriate
- Notice period required should the Employer or Employee wish to terminate employment during the probationary period
- The fact that the full rigours of the Disciplinary procedures may not apply during the probationary period.
The initial number of weeks provide an opportunity dialogue between the Manager and the Employee with regard to expectations regarding performance, conduct and attendance and to identify supports to be implemented to support the Employee’s ability to settle into the role and the Organisation.
The initial number of weeks also provide for an opportunity to map out and diary key probation review meetings with the Employee and ensure the individual is aware of the probation review process to be followed. Key elements of the probation review process can include the following steps:
- Set Objectives - Meeting between Employee and manager to set SMART objectives on commencement of employment.
Ongoing Support & Supervision. - 3 Month Review - Formal review of initial number of months in the role, identifying / implementing further supports if necessary, highlighting any concerns, implementing improvement plan, if required.
Ongoing Support & Supervision. - 6 months Review - Formal review of first six months in the role. Decision communicated as to whether to confirm in employment, extend probation or terminate employment.
Where there are serious misgivings with an Employee’s fit in the Organisation or their role, then the employment relationship may be terminated during / or at the end of the probation period.
Employees who have less than 12 months continuous service with an Employer, including Employees on probation, are not entitled to bring claims under Unfair Dismissals Acts 1977 to 2015. However, an entitlement to fair procedures and natural justice for all Employees regardless of service applies.
The requirements regarding the dismissal of an Employee on probation generally depend on the terms of the Employee’s contract of employment and applicable policies. If the contract provides that the disciplinary procedure will not apply to Employees on probation, an Organisation is not contractually obliged to follow the full disciplinary procedure prior to dismissing an Employee on probation. If, however, the contract provides that the disciplinary procedure will generally be followed in respect of all dismissals and does not make any exception for the dismissal of an Employee on probation, arguably, the Employer is obliged to follow the disciplinary procedure prior to dismissing the Employee.
It should be noted that the above is only applicable in circumstances where an Employee has not been employed for more than 12 months. It is recommended that probationary periods should not extend for a period of greater than 12 months. The period of 12 months includes any applicable notice period on termination.
It should be noted that Employees (regardless of service) can bring a complaint to the Workplace Relations Commission (WRC) under section 13 of the Industrial Relations Acts 1946 – 2015 if they have a grievance against their Employer about their treatment. Recommendations under the Industrial Relations Acts 1946 – 2015 are not binding on Employers, however, the parties are expected to give serious consideration to any recommendation.
In addition, Employees with less than ones years continuous service are afforded protection arising out of dismissals by reason of one or more of the nine discriminatory grounds as outlined under the Employment Equality Acts 1998 – 2015 and may bring forward a claim to the Workplace Relations Commission.
