EMPLOYMENT CASE LAW / HUMAN RESOURCE MANAGEMENT – The Probation Period - What Managers need to knoW
An Employer can take a number of steps to increase the likelihood of making the appropriate hiring decision during the recruitment and selection process. However, it is not an exact science. Given this, effective use of the probationary period, as an extension of the recruitment and selection process remains critical in order to assess the suitability of a newly appointed Employee, and support their integration into their role and the Organisation.
During the six month probation period there should be ongoing dialogue between the Manager and the Employee with regard to performance, conduct, attendance and any other concerns impacting on the new Employee’s ability to settle into the role and expectations / requirements of the role Any concerns which arise during this time should be addressed promptly with the Employee.
In line with best practice, a probation review process may entail the following:
Step 1: Set Objectives: meeting between Employee and Manager to set SMART objectives during the first number of weeks of employment.
Step 2: 3 Month Review: highlighting / summarising performance against the previously agreed objectives, outlining any improvements, if any required, and agreement on objectives for the remaining 3 month period.
Step 3: 6 Month Review: highlighting / summarising performance during the first 6 months in the role , advising of decision to make the employee permanent, extend probation or terminate employment as appropriate.
Where concerns have been highlighted in regard to performance, conduct, attendance or otherwise, as noted, it may be determined to extend probation or terminate employment. Concerns should be raised with the employee in a prompt manner and probation improvement plan put in place with a view to addressing any shortcomings identified and putting the appropriate supports in place.
Employees who have less than 12 months continuous service with an Employer, are not entitled to bring a claim under Unfair Dismissals Acts 1977 to 2015. Therefore, the process for dismissal, including the disciplinary process, may be subject to less scrutiny than in respect of Employees who may be in a position to challenge the fairness of the dismissal under the legislation. However, there may be a contractual obligation to follow the disciplinary process in respect of Employees on probation and furthermore, there is a general entitlement to fair procedures and natural justice for all Employees - regardless of service.
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, an Employer is obliged to follow the disciplinary procedure prior to dismissing the Employee.
However, even where the disciplinary policy is stated not to apply to Employees on probation, the Employer should still apply fair procedures and natural justice to the Employee.
This should include:
Therefore, a scaled-back version of the disciplinary process should normally be applied.
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. If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.
It should be noted that Employees (regardless of service) can bring a complaint to the Workplace Relations Commission 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.
During the six month probation period there should be ongoing dialogue between the Manager and the Employee with regard to performance, conduct, attendance and any other concerns impacting on the new Employee’s ability to settle into the role and expectations / requirements of the role Any concerns which arise during this time should be addressed promptly with the Employee.
In line with best practice, a probation review process may entail the following:
Step 1: Set Objectives: meeting between Employee and Manager to set SMART objectives during the first number of weeks of employment.
Step 2: 3 Month Review: highlighting / summarising performance against the previously agreed objectives, outlining any improvements, if any required, and agreement on objectives for the remaining 3 month period.
Step 3: 6 Month Review: highlighting / summarising performance during the first 6 months in the role , advising of decision to make the employee permanent, extend probation or terminate employment as appropriate.
Where concerns have been highlighted in regard to performance, conduct, attendance or otherwise, as noted, it may be determined to extend probation or terminate employment. Concerns should be raised with the employee in a prompt manner and probation improvement plan put in place with a view to addressing any shortcomings identified and putting the appropriate supports in place.
Employees who have less than 12 months continuous service with an Employer, are not entitled to bring a claim under Unfair Dismissals Acts 1977 to 2015. Therefore, the process for dismissal, including the disciplinary process, may be subject to less scrutiny than in respect of Employees who may be in a position to challenge the fairness of the dismissal under the legislation. However, there may be a contractual obligation to follow the disciplinary process in respect of Employees on probation and furthermore, there is a general entitlement to fair procedures and natural justice for all Employees - regardless of service.
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, an Employer is obliged to follow the disciplinary procedure prior to dismissing the Employee.
However, even where the disciplinary policy is stated not to apply to Employees on probation, the Employer should still apply fair procedures and natural justice to the Employee.
This should include:
- warning the Employee that his/her performance/conduct/attendance is not satisfactory
- allowing a reasonable chance to improve performance/conduct/attendance
- assisting the Employee to improve, e.g. providing training or mentoring.
Therefore, a scaled-back version of the disciplinary process should normally be applied.
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. If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.
It should be noted that Employees (regardless of service) can bring a complaint to the Workplace Relations Commission 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.
