Dismissal During Probation

How to Deal with Employee Dismissal during Probation

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What Will I Learn from This Article about Employee Dismissal During Probation?

Why an employer cannot dismiss an employee on probation without explanation or notice
How employees dismissed while on probation can submit unfair or wrongful dismissal claims to a relevant body/organisation
How to manage Probationary Periods by using probation reviews at regular intervals
How to apply the general principles of natural justice and fair procedures for managing probation periods
How to manage Employee Absence during Probation
Notice Required for Dismissal during Probation

Use Appropriate Probation Periods for Permanent or Fixed-Term Contracts

Broadly speaking, there are two different types of contracts of employment, permanent contracts and fixed-term contracts.

Permanent or indefinite contracts have a start date but no end date. The person will continue to be employed unless they resign or are terminated. Fixed-term contracts have a start date and defined end date of if employed for a specific purpose i.e. to cover Jane Doe’s maternity leave will end when Jane Doe comes back to work after the leave.

Each contract should have a probationary period included as it is a very useful tool when managed correctly. We would advise that all permanent contracts should have a six-month probationary period and all fixed-term contracts should adopt a rule of a week per month, rounded up i.e. a six-month fixed-term contract, should have a two-month probationary period.

Employees Cannot Be Dismissed without Notice or Explanation during Probation

Many employers mistakenly believe they can dismiss a new employee at any time, without notice or having to explain their reasoning within the first twelve months of employment, without fear of an employment law claim. This is not true.

The employee may not be permitted to make an Unfair Dismissal claim but they can submit an unfair or wrongful dismissal claim under the Industrial Relations Act to the WRC and on appeal to the Labour Court. The outcome of such a claim is a recommendation, rather than a binding outcome but ignoring the moral authority of Courts is likely to reflect badly on the reputation of the company and not likely to be accepted in unionised environments. It would also have unintended consequences on staff morale and the perceived sense of equality and fairness in the employment relationship for others.

Employees with less than twelve months of service may also submit claims if they were dismissed on foot of a Protected Disclosure or Trade Union Membership, or if they claim to have been dismissed on a discriminatory ground. Any dismissals related to protected leave such as Maternity, Adoptive, Carer’s, Parental, Force Majeure Leave do not require twelve months’ service or exercising one’s rights under the national minimum wage act.

How Best to Manage Probationary Periods

Document Probation Policies and Follow the Code of Practice

Companies can set a standard that disciplinary policies and procedures do not apply to those on probation, making the process a little less restrictive. However, in the interest of fairness and good HR practice probation policies should be documented and aim to broadly follow the principles outlined in the Code of Practice on Grievance and Disciplinary Procedures reflecting the rules of Natural Justice.

The probationary period is a time for the employee to learn the job requirements and demonstrate the skills and abilities to perform the duties assigned. To complete the probationary period employees must have demonstrated satisfactory performance in the position.

Carry out Probation Reviews at Regular Intervals

A formal sit-down discussion (probation review) should be completed after three months and again six months for all permanent contracts, at which feedback on the manager’s performance expectations versus the employee’s performance and progress should be discussed. Employees on fixed-term contracts will have probationary periods reflective of their contract length. Therefore, they may only have one probation review meeting at the end of their probationary period. The probation reviews should permit both parties to identify any learning and development needs and prepare themselves for the future. Once this is known it becomes easy for employees to learn about the yardsticks and to improve their performance in the future.

Procedures for Managing Probation

The procedures for managing probation will comply with the general principles of natural justice and fair procedures which include:

That employee perspectives & feedback are fairly examined and processed
That details of any concerns are put to the employee
That the employee is given the opportunity to respond fully to any such concerns
That the employee is given the opportunity to avail of the right to be accompanied by a support person
That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

If probation is extended a final probation review should take place after nine / ten months. We do not recommend allowing the probation to extend beyond this period as dismissals with notice could bring the service over twelve-months.

Employee Absence during Probation

In cases where an employee is absent from work during their probation period on protective leave such as Maternity Leave, Paternity Leave, Parental Leave, Carer’s Leave, and Adoptive Leave the probationary period should be suspended for the duration of the absence and completed by the employee on return to work from such absence. This may also apply in other cases of significant or frequent absence during the probationary period due to illness or other reasons.

Notice Required for Dismissal during Probation

A shorter period of notice can apply during probation periods for both parties. This should be laid out in the contract of employment. In circumstances justifying summary dismissal, the company may terminate employment without notice.

If you would like to Aspire HR to support you in implementing a thorough probationary management process, please email us now at info@aspirehr.ie.

Dismissal During Probation