Probationary Period: Risks and Misconceptions

Probationary Period: Risks and Misconceptions

Many people assume that employers can terminate an employee’s contract during their probation period without much concern and at complete discretion of the employer.

While it is true that employees are not protected under the Unfair Dismissals Acts 1977–2015 until they’ve completed 12 months of continuous service, this doesn’t give employers a free pass.

Other legislation, like the Employment Equality Acts 1998–2015, the Industrial Relations Acts 1969 (as amended), and the Protected Disclosures Act 2015, don’t have any minimum service requirements.

Employers need to be aware of these when handling dismissals during probation.

Case Law

Take the case of C & W O’Brien Architects v A Worker as a clear example of the potential risks of not following fair procedures during a probationary period:

• The Labour Court was required to examine a case relating to a worker who commenced employment on 06 January 2020 on a salary of €70,000 but was summarily dismissed on 17 February 2020.
• The employee had been unable to find alternative employment since his dismissal.
• The employee’s contract of employment provided for a probationary period of 6 months and the notice period was 1 week.
• Employee did not receive a copy of the company’s Disciplinary Policy (referred to on employment contract).
• The employee was summarily dismissed on 17 February 2020 without any prior warnings or indication that either his conduct or his performance was unsatisfactory.

Decision:

The Labour Court agreed and held that an employer is not relieved of their obligation to act fairly during a probationary period.

• The Labour Court pointed to the code of practice in grievance and disciplinary procedures made under the Industrial Relations Act, which must be complied with before any decision is taken by an employer to dismiss an employee during his/her probationary period.
• The Labour Court noted that the new employer had failed to have any regard to the code of practice when it dismissed the employee during his probationary period without any due process whatsoever.

The Labour Court recommended that the employee be paid compensation of €60,000 together with the monetary value of his accrued leave of €754.31. This significant sum was recommended having due regard to the employee’s agreed salary and the losses he accrued arising from the date of his dismissal.

Watch Out for Equality Issues

Employers need to tread carefully if an employee is absent due to a medically certified illness during probation. Using extended sick leave as a reason for dismissal could open the door to a discrimination claim based on disability.

If there are concerns about an employee’s ability to work, it is essential to get medical advice, involve the employee in discussions, and explore reasonable accommodations. These steps are not just good practice—they’re a legal requirement under employment equality laws.

Probation Period Policies

While employers do have some leeway to dismiss staff during probation, they must still follow fair procedures for it to be lawful. A solid probation policy and management can make all the difference.

Putting a policy in place puts the employers in a much stronger position to successfully manager probation periods. It provides clear guidance on how issues like performance, conduct, or cultural fit will be handled and typically includes a disciplinary process separate from the one used for permanent employees. With such a policy in place, employers are better equipped to manage expectations, address problems effectively, and reduce the risk of disputes.