probationary period | Employment Rights Ireland

My Single Best Tip for Employers

The first time I met Séamus he was a worried man. Séamus is a small employer, with just a handful of employees.

But he had to let one of them go recently because he just wasn’t working out. His attitude was disastrous and Séamus could not see how their relationship could be a happy one.

In fact, he could only see it ending badly.

And that’s exactly what happened on a wet Monday morning a few weeks before Séamus came to see me.

Are you an employer?

Are you concerned about the possibility of facing an costly claim for unfair dismissal?

Recently, I wrote an article, “My Single Best Tip for Employees”.

In this piece, I want to give you, as an employer, my best tip to protect yourself in relation to unfair dismissal claims, and how to ensure you are not stuck with an employee who is just not right for your organisation.

Let’s take a look, shall we?

My tip for employers is almost the exact opposite of my tip for employees.

Let me explain.

My tip for employees was to try to ensure that he got 12 months’ continuous employment under his belt, if at all possible. This was to ensure the employee could avail of the remedies provided by unfair dismissal legislation in Ireland, particularly the Unfair Dismissals act, 1977.

My tip for you as employer is to ensure this does not happen, unless you are absolutely satisfied that you are happy with the employee and they are right for your business.

The best way to do this is by a robust, comprehensive probation period clause in the contract of employment.

This clause should make a number of provisions, and I would recommend the following:

The probation period would be for an initial 6 months, but you would have the right to extend it to 11 months, if needed. This gives you a full 11 months to ascertain whether the employee is right for you or not.
The full rigours of the disciplinary procedure will not apply during the probation period; I would still recommend fair procedures and natural justice if you are going to terminate, but you would provide that the full disciplinary procedure need not be afforded during probation.
The notice period during the probation period would be one week; if you do not spell this out you run the risk that whatever notice period stipulated in the contract will apply-this could be one month or three months and it would be strongly arguable, in the absence of the one week provision, that the employee is entitled to one or three months’ notice. Even if you did not require the employee to work the notice period, you would still be on the hook for payment of wages in lieu of notice.

It is widely accepted that an employee can be dismissed during the probation period. In fact, the purpose of the probation period is to allow the employer see if the employee is “the right fit” for the organisation.

It is critical, therefore, that you have as much time as possible to make that decision, but thtat you make it before the employee has 12 months’ continuous service and the protection of the Unfair Dismissals Act, 1977.

Bonus Tip #1 for Employers

If you are going to terminate an unsuitable employee don’t leave it too late-remember that the termination date is the date when notice expires, not when it is given.

If, for example, you have an employee working for 50 weeks and you give her a months’ notice of termination she will have the necessary period of continuous employment to bring an unfair dismissal claim.

Bonus Tip #2 for Employers

I would recommend that you always go through some form of fair procedure before terminating, even if the employee is on probation.

If the employee has over 12 months’ service you need to afford the full rigours of your disciplinary procedure before terminating the employment.

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.

Unfair Dismissal During the Probationary Period-the Options Open to the Employee

Many employers believe, wrongly, that they can easily dismiss an employee once they are still within the probationary period.

This is mistaken.

Even employees on probation are entitled to natural justice and fundamentally fair procedures.

While the employee may not have the necessary service (12 months) to avail of the protection of the Unfair Dismissals Acts 1977-2007, a claim can be made under the Industrial Relations Act, 1969 (as amended) for unfair dismissal.

There is no service requirement under this act.

Industrial Relations Act, 1969

You can refer a complaint to the Workplace Relations Service under section 13 of the Industrial Relations Act, 1969. However, if one party to the dispute objects in writing to the investigation the adjudicator cannot investigate:

if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.(Section 13 Industrial Relations Act, 1969)

Also, you can refer a dispute to the Labour Court under section 20(1) or 20(2) of the Industrial Relations Act, 1969. However, the Labour Court’s recommendation is not legally enforceable unless both parties have agreed prior to the hearing to be bound by the outcome. Then either party could sue the other party on foot of the undertaking for breach of contract.

Section 13(9) of the Industrial Relations Act, 1969 allows for an appeal from a decision of the Rights Commissioner where a party has referred a dispute under section 13. This occurred in the case below:

In IRISH POSTMASTERS UNION- AND -A WORKER the Labour Court awarded the appellant €30,000 and overturned the decision of the Rights Commissioner’s decision that the employer was not in breach of contract when terminating employment while the probationary period was still in place.

The finding of the Labour Court in this case is instructive and the principal finding was that the employer’s decision not to

adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 0f 2000 because he was on probation, was misconceived.

Here is the full decision of the Labour Court:

DECISION :

The matter before the Court concerns an appeal of a Rights Commissioner’s Recommendation, which found against the Worker’s claim that his Employer unfairly dismissed him.

The Appellant submitted that the dismissal which occurred during his probationary period was unfair and was conducted without due regard for fair procedures. He held that he was not given a right to reply, he was denied the right to be represented and he was not afforded the opportunity of an appeal against the termination decision.

In its defence the Employer submitted that the Appellant was treated in accordance with his contract of employment, which provided for an ongoing review of his performance and included a clause, which stated, “Either party may terminate employment during the probation or at the end of the probation period.”

The Employer submitted that while there were no disciplinary issues with the Appellant, concerns did emerge about his overall suitability for the position and it was decided to extend his probation. When he objected to such an extension, it was decided to terminate his employment, and pay him three months salary in lieu of notice, as per his contract of employment.

The Court has carefully considered the written and oral submissions of both parties. It is clear to the Court that the rationale behind the termination of employment was the Employer’s error in appointing the Appellant to the position in the first place and it consequently sought to extricate itself from that contract.

In all the circumstances of this case, the Court finds that the Employer’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 0f 2000 because he was on probation, was misconceived.

Consequently, the Court finds that the dismissal of the Appellant was unfair. The Court finds in favour of the appeal and overturns the Rights Commissioner’s Recommendation.

The Court recommends that the Appellant should be compensated by the payment of €30,000 in full and final settlement of the claim before the Court. For the avoidance of any doubt this recommended payment is in addition to the three months pay in lieu of notice already paid.

The Court so decides.

Signed on behalf of the Labour Court

Caroline Jenkinson

27th January, 2011 ______________________

DN Deputy Chairman

It is advisable therefore for the employer to adhere to its disciplinary policy or, if this does not apply during the probationary period, a probationary policy should be in place and which should broadly follow the principles of fair procedure set out in the Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice.

Furthermore, section 20(1) of the Industrial Relations Act, 1969 provides for investigation of the dispute at the request of the worker(s), provided he agrees to accept the recommendation:

20.—(1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the Principal Act in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.

Extending the Probationary Period and Termination of the Employment

To extend the probationary period of an employee there must first be provision for an extension, either in the contract of employment itself or in the staff handbook.

Probationary review meetings should be held during the probationary period with the employee being given feedback as to how they are performing and any areas requiring improvement.

At the end of the probationary period there should be a final probationary review which will assess the employee’s performance and suitability. The employee will then either be confirmed in the employment or dismissed or have the probationary period extended.

The outcome of this review should be communicated to the employee in writing and if the probation is to be extended the employer should make clear what improvements are necessary. The probation period should only be extended to allow the employee to improve in whatever areas he/she is deficient.

The employee should be advised in writing of the need to extend the probation period, the required improvement areas and the review dates to monitor performance.

If the employee is to be terminated he/she should be invited to a disciplinary hearing and given the opportunity to make representations on his/her behalf. The employer should not take a decision to terminate until he has considered these representations.

The decision to terminate and the reasons should be given to the employee in writing.

Dismissed During Probation?

So, if you are unfairly dismissed during your probation there are 4 options which may be open to you, depending on the circumstances:

A claim for unfair dismissal under the Industrial Relations Act, 1969 (as amended)
A civil Court action for breach of contract/wrongful dismissal
A claim to the Equality Tribunal under the Employment Equality Acts 1998-2004
a claim under the Protected Disclosures Act, 2014

Unlike with the Unfair Dismissals Acts, there is no service requirement for any of these 3 options.

For this reason, the probationary clause in the employment contract needs to be properly drafted to provide for a shorter period of notice for termination during probation and the use of a probationary policy if the full disciplinary policy is not to be employed during probation.

Regardless of how it is drafted, natural justice and fair procedures must be afforded to the employee in extending the probationary period or terminating at the end of it.

Word of warning for employees

A decision in your favour from the Labour Court has moral authority, but is unenforceable if the employer simply chooses to ignore it. In the case above involving a trade union, it would have been very difficult for the union to ignore a recommendation from the Labour Court.

And if you refer a dispute under section 13 to the Workplace Relations Commission the adjudicator cannot investigate if the employer objects in writing.

That’s not the case with smaller employers, or employers who simply don’t care about adverse publicity, or any other actions you might take to have your decision recognised and enforced.

From an employee’s perspective, and with a view to future employment, it may well be worthwhile to have official recognition that he was unfairly dismissed-even if he was never to obtain a cent in compensation.

This will depend on the circumstances of each case, and a decision for the employee to think carefully about.

You may also be interested in reading advice for employees on probation.