Probation is a close-ended status given to new employees of an organisation for a specified period of time. The purpose of such probationary periods is to allow the hiring employer to closely evaluate the new employee’s performance and behaviour as they interact with fellow employees and, where appropriate, others – customers, suppliers, etc.
During the probationary period, the employer can terminate the employment of the new recruit if they are not performing to the required standard. Of course, if the employee is consistently performing to the required standard, the employer can decide to make the employee permanent during the probation period or at its end.
An employee does not have the same protection from dismissal during a probationary period as they do when they are made fully permanent. During probationary periods the Unfair Dismissals Act does not apply to the dismissal of the employee provided that there is a written employment contract and the duration of probation is one year or less.
So probationary periods do allow employers to assess whether they have made a good hiring decision. Imagine though that during a probationary period you conclude that things are not going to work out with the new recruit. So you decide to proceed with a dismissal.
The legal situation is simple yes? You think all the formal procedures and paperwork can be dispensed with and you can abruptly heave someone out the door? Actually – no. Employers still need to exercise care as fair procedures and natural justice still needs to apply. There are a host of ways in which employers can make mistakes. Let’s look at some of those possible mistakes – any of which can leave the employer exposed:
Does your organisation have a probationary policy clearly defined?
If there is such a policy does it make clear that employees are required to successfully complete the probationary period before being considered permanent employees?
Does the policy make clear that employees can be dismissed during the probationary period if they are unsuccessful in their new role?
Is there a probationary clause in your employment contract or employee handbook describing the policy? By the way – you should clearly outline in your documentation that probationary employees are not subject to your organisation’s disciplinary policy. Instead, they’re subject to your probationary policy.
Has the employee been given a copy of the employment contract or employee handbook?
Has the employee signed their contract?
Have you been meeting with the employee regularly during their probation period to review their performance and identify what they need in order to succeed? Your organisation’s actions and behaviour during the probationary period need to demonstrate that you have been working with the employee to give them every opportunity to succeed, e.g., meeting with them regularly to review things, agreeing with them on the tasks to be performed and the timeframe in which to perform them, providing them with the tools and support they need in order to achieve their goals, etc.
It is possible that you can be ambivalent about the new employee as the end of their probationary period approaches. They may not have done enough yet for you to have full confidence in them – but they might be showing you enough potential to make you want to give them some more time. Does your policy allow for the probation period to be extended? And if you’ve extended an employee’s probation period have you notified them of that extension before or at the end of their initial probation period?
If you answer “no” to any of the above questions then you are on dangerous ground if you move to dismiss the employee before the end of the initial probation period or during any subsequent extension period.
Even if you can answer yes to all the above there are other potential issues. Are you considering dismissing an employee during an extended probation period where their length of service has exceeded 12 months? Or where their notice period and holidays will cause their length of service to extend beyond 12 months?
And if you dismiss someone during a probation period or extended probation period have you done so in writing? And can you point clearly to the areas in which they have underachieved? And did you give them an opportunity to make representation on their behalf before your final decision to terminate?
It’s a more complicated area than you might at first think isn’t it?
Think that a dismissed employee whose short length of service prevents them from having the protection of the Unfair Dismissals Act has no other legal recourse? Think again!
Firstly, if the employee believes that they’ve been dismissed during the probationary period because the employer is discriminating against them, they can bring a complaint of discriminatory dismissal under equality legislation and such complaints can be referred to the Equality Tribunal. Here’s a guide from the Equality Authority on the relevant legislation – the Employment Equality Acts 1998-2011. You need to carefully consider all the facts before deciding to terminate a probationary employee’s contract. For example, do they potentially fall under the protection of equality legislation? Have they just announced a pregnancy? In 2008 the Employment Appeals Tribunal considered a claim by a manager of a pharmacy that she had been dismissed during probation because of her pregnancy. In that case though, the employee did not win her case – fundamentally because she had no direct evidence that her pregnancy had been the reason for her dismissal.
Secondly, an employee can bring an action for wrongful dismissal if they allege that either there has been a breach of contract or that their constitutional rights have been breached. Such a claim seeks damages and would be dealt with by the civil courts. One scenario in which such a claim could be brought would be if an employer enticed an employee to leave another job and then sought to dismiss them from their new job during their probationary period. Again – there is no length of service requirement in such circumstances. The key to preventing any such claim from being successful would be in the careful wording of such an employee’s employment contract.
It should be clear to you by now that attempting to dismiss an employee during their probationary period is not as straightforward as you might have initially suspected! If you do find yourself with a performance issue to address with such an employee, one guiding principle to bear in mind should be to treat the employee with respect at all times – that may dissuade them from taking action against your organisation. Remember – fair procedures and natural justice still needs to apply.
To get expert and professional guidance on handling dismissal issues in Ireland call Mary Cullen, Patrick Foley, Keith Connolly or Liam Barton on 056 770 1060 or email firstname.lastname@example.org.
The information in this article is provided to employers as part of Insight HR’s Employer Information Service. We regret we are not able to respond to individual employee requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. If you are an employer requiring information on this topic please contact one of our experienced consultants at 056 770 1060.