Advice for Employees on Probation


She was dismissed while on probation.

She’s contacted me, and she’s not taking it lying down.

She wants to take legal action.

I come across these cases very regularly.

It happens all the time.

And in the vast majority of cases it is almost certain that there is little or nothing that can be done.

Let me explain.

Let’s start by winding the clock back and let me give you some advice about being on probation.

The first thing to understand is that an employer can dismiss you when you are on probation for good, bad, or no reason.

That’s right-if you don’t fit the organisation, if for whatever reason your employer decides to terminate your employment he is almost certainly entitled to do so.

And he doesn’t have to give you any reason.

In fact, the employer may be well advised not to give a reason, in case he leaves a hostage to fortune.

It’s vital to recognise, though, that the purpose of the probation period is to allow the employer see whether you are right for the organisation, or not.

And until you have 12 months service acquired you do not have the statutory protection offered by the various unfair dismissal legislation, Unfair Dismissal Acts, 1977-2005.

This means, therefore, that you cannot bring a claim for unfair dismissal, or constructive dismissal. You are, simply, “statute barred”.

That does not mean that there is no protection for an employee who does not have 12 months’ service. However, it does mean that the avenues to bring any type of claim are significantly reduced.

I have written before about the options open to an employee who is dismissed whilst on probation. At first reading that article may give you a lot of comfort if you are an employee on probation or if you have been dismissed whilst on probation.

But the reality is that you are far better off avoiding the situation.

For example, you can bring a claim under the Industrial Relations Act, 1969 but if the employer objects to an adjudicator hearing the claim or does not agree to be bound by the recommendation of the Labour Court then you will run into quicksand.

You can obtain a recommendation that is legally unenforceable.

My advice is simple: do your utmost to obtain 12 months’ service.

Issues During Your Probation

If you want to raise grievances or issues whilst on probation be crystal clear that you will run the risk of the employer deciding, before you have 12 months service under your belt, that you “do not fit in” or are not right for the organisation.

So, any misgivings you have about your line manager or how the company does its business generally or workplace policies/procedures or its attitude to global warming or the fact that you cannot take holidays at a particular time or the fact that the employer does not operate a sick pay scheme or provide a pension might be more effectively ventilated once you are in the job over 12 months.

I am not saying you cannot raise issues when you are on probation or have less than 12 months’ service; I am saying, though, that you do need to be aware of the possible consequences.

Don’t Win a Battle But Lose the War

Make sure you don’t win a battle but lose the war.

Because if you come to me then, after being terminated on probation, the likelihood is, unless there are particular specific circumstances giving rise to a claim on a discriminatory ground, I will probably have to tell you that I cannot help you and all you can do is chalk it down to experience.