Managing employees during their probation period can be a delicate process for employers. Not only is it important to provide feedback and guidance to help employees improve, but employers must also navigate legal requirements and potential challenges to any decisions made.

In this article, we will explore some common questions related to probation periods, including how to address underperformance, the length of probationary periods, and employee entitlements. By understanding these issues, employers can ensure they are managing probation periods effectively and are compliant with the latest legislative changes.

Here are some of the frequently asked questions from our clients.

Q1: How do I correctly address a situation where an employee is not meeting expectations during the probation period?

Answer: There are a number of steps you can take to ensure you are providing the employee with the support they need as well as ensuring the required level of performance is achieved.

• You should address the situation by meeting regularly with the employee and discussing their performance during the probation period.
• Provide specific feedback on where they have fallen short and areas for improvement. Seek their input and perspective – respectfully. It is important to clearly communicate that they are not meeting the expectations for the role and discuss the next steps, which, may potentially include termination of employment.
• Ensure that the conversation is documented and have the employee sign off on any action plan or agreement reached during this meeting.
• Ideally – there should be no surprises. Each check-in meeting where you are advising them that their performance is not at the standard required, you should also advise them of the possible implications should this continue – “may not pass your probation”, “may impact your future here.”
• The employee should be advised of the planned meetings that will take place and when they will have their official probation review meeting.
• The employer should issue an invitation to the final probation review meeting.
  • It is important to note that the invite should reference the previous communications that have taken place in relation to their performance during the probation period and clearly outline that the potential outcome of the meeting may be that the employee has not passed their probation period. This will ensure that the failure to pass their probation and subsequent 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 achieved to support the decision that they did not pass their probation period and therefore their employment will be terminated, their final date of employment, their notice period and a statement that any accrual of annual leave will be paid.

Q2: Can I extend an employee’s probation period past 6 months?

Answer: The European Union (Transparent and Predictable Working Conditions) Regulations 2022 made changes to the duration of 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.

It is also important to note that if you hire workers on a fixed-term contract, the length of any probationary period must be proportionate to the expected duration of the contract and the nature of the work.

Q3: When might it be okay to extend an employee’s probation period?

Answer: An employee’s probation period can only be extended in exceptional circumstances, for example, if it is deemed to be in the employee’s interests or where the employee has been on extended leave, such as sick leave, during their probation.

It can also be extended where it is justified by the nature of the work, for example public service employment.

• Probation can only be extended to a maximum of 12 months.
• Employers should be cautious of ending probation at the twelve-month mark and should note that notice periods are included in the calculation of length of service.
  • Under the Minimum Notice and Terms of Employment Act, an employer is required to give an employee minimum 1 week’s notice when terminating employment, if the employee has been employed for 13 weeks to 2 years.
  • In some cases, the contract of employment may have a longer notice period, which would then be applicable and included in any calculation of service and could potentially bring the employee up to 12 months service, giving them recourse under the Unfair Dismissals Act.

Q4: Are employees who are on probation entitled to the same Sick Pay entitlement as permanent employees?

Answer: In certain circumstances, yes.

The Sick Leave Act 2022 states that employees in 2023 are entitled to a minimum of 3 paid certified sick days in a period of 12 months. The minimum payment for sick days is 70% of an employee’s daily wage/salary up to a cap of €110. All employees who have 13 weeks continuous service are entitled to statutory sick pay regardless of probation status.

Q5: My employee’s contract states that their probation ends on 1st Jan 2024, does this still apply?

Answer: Employees who are past 6 months continuous service since the date of commencement of the new legislation (The European Union Regulations 2022 – Transparent and Predictable Working Conditions) are deemed to have completed their probation.

The probationary period of employees who have not passed the 6-month mark will end 6 months from their commencement of employment regardless of what is set out in their contact.

Q6: If an extension of the probationary period is permitted, should I provide a formal letter stating this?

Answer: Yes, it is advised that a formal written letter is given to the employee on the extension of their probation period.

This letter should contain the following information:

• Employees full name
• Employees address.
• Date of the letter
• Employees role
• The duration of the extension and it’s end date.
• Reasoning for the extension of probation
• Reference to the improvement plan in place and the standards to be achieved
• When the probation review meeting will take place
• Managers name, title, and signature

By setting clear expectations, providing regular feedback, and documenting performance, employers can make informed decisions about an employee’s future with the company.

It is important to remember that probation periods are not meant to be punitive, but rather an opportunity for both the employer and employee to evaluate their fit for the role.

By approaching probation periods in a fair and respectful manner, employers can establish a positive work culture and attract and retain top talent to their organisation.

Voltedge Management