Probation Management can be seen as an extension of the recruitment and selection process. A Probation Period is a time period at the beginning of employment which allows the employer to assess the employee’s suitability for the role and address any performance related issues, early in the employment. During the probationary period, it is easier for an employer to end an employee’s employment due to under performance, as they do not have the protection of the Unfair Dismissals Acts until they reach 12 months service. Nevertheless, employers should follow best practice guidelines for probation management to avoid complaints under the Industrial Relations legislation.

A probationary clause should be outlined in an employee’s contract and should state the length of the employee’s probation period. The passing of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 saw changes made to the probation period in Ireland, from 1st August 2022; in situations where an employee is subject to a probationary period at the commencement of their employment, that period must not exceed six months. The probationary period may, on an exceptional basis, be longer but it must be in the interest of the employee and must not exceed 12 months.

In exceptional circumstances, where the probation period is up to 12 months, employers should be cautious about ending probation at the 12 month mark. This is because, under the Minimum Notice and Terms of Employment Act, an employer is required to give an employee one week’s notice when terminating employment, if the employee has been employed for 13 weeks to 2 years and notice periods are included in the calculation of length of service.  Therefore, in the case where an employee feels that they have been unfairly dismissed, they would have the required service to take a case under the Unfair Dismissals Acts.  For example, if an employee failed their probation upon reaching 11 months and 3 weeks service, the 1-week notice period would be included in the calculation of length of service and this would bring the employee up to 12 months service, giving them recourse under the act.

Probation reviews which are conducted throughout the probation period allow for an employer to assess the employee’s suitability for the role and match for the Company. Therefore, during an employee’s probation period, an employer should be meeting the employee on a regular basis. For example, if the employee’s probation period is 6 months, the employer should schedule a meeting with the employee on month 1, month 3 and month 5. The purpose of formal probation meetings is to offer feedback on the different aspects of the employee’s performance by explaining both the areas where they are excelling, and areas where improvement is needed.

The following steps can be used to successfully carry out a probation review:

• Invite the employee to their probation review by sending a letter via email.
• During the meeting, an employee should be provided with constructive feedback:
  • The employer should begin by outlining the positive aspects of the employee’s performance and give an example/examples.
  • The employer should explain the area/s the employee needs to improve in and provide an example/examples.
  • The employer should outline goals that they would like the employee to achieve by the next probation review meeting.
  • The employer should assure the employee that they will provide them with any support and assistance that will help them reach the standard expected of them.
  • During the first probation review meeting, it is important to inform the employee that the employer/manager has the option to extend the probation period if they feel it is necessary but that this will not exceed 6 months. An employer should also outline that the employee may be at risk of failing their probation period if their performance does not reach the standards required for the role.
  • After each probation review meeting, it is important to draft and send a follow-up letter to the employee with a detailed summary of what was discussed in the probation review meeting.

If an employee failed to reach the standard required and the employer has followed the above recommendations, the employee should be invited to a final probation review meeting where the employer informs the employee that their contract of employment is being terminated. It is important to note that the invite should clearly outline that the potential outcome of the meeting may be that the employee has failed their probation period. This will ensure that the failure of their probation/termination does not come as a shock to the employee during their final probationary meeting.  The employer should issue the employee with a final follow-up letter outlining all the aspects of performance that were not improved upon, final date, notice period, reference for future employer, and a statement that any accrual of annual leave will be paid.

An important learning has emerged from the Over-C-Technology case. The employee’s contract contained a clause which allowed his employment to be terminated for no reason during his probation period. It would be important that employers adopt this clause in employment contracts going forward. The Court of Appeal’s decision restores our understanding of probationary processes, in that it confirms that:

• The employee can be terminated on probation on performance grounds without the need to afford fair procedures and natural justice
• The employee is entitled to fair procedures and natural justice if he/she is terminated for misconduct, even if the employee is still on probation

Termination of a contract is permitted for poor performance and fair procedures shall not apply. However, it would be vital that employers continue to adhere to good HR practices as outlined above.  In cases of misconduct or gross misconduct, it is not the probation process that should be used but rather the disciplinary procedure, and fair procedure and natural justice should apply.

If you are an organisation based in the Republic of Ireland and require further information or advice relating to HR, please do not hesitate to contact our office on (066)7102887 or email us at info@thehrsuite.com.