Probation – I have an employee who is being promoted; can I put them on probation?

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I have an employee who is being promoted; can I put them on probation?

Probation is a period of time at the start of employment, usually the first 6 months, where the employer assesses the new joiner’s suitability for the role and if they should be appointed to permanent employment.

When an employee is moving roles or being promoted within the organisation, probation cannot operate in the same way as it would for a new joiner and therefore any issues that may arise must be dealt with in a different way. An employee with less than one years’ service does not have the same protection under the Unfair Dismissals Act, 1977.

This is an issue that often arises with internal moves, as unsuccessful recruitment with internal candidates is much more tricky than dealing with an external candidate who has little employment law protection.

The employer needs to consider the length of the employee’s service under the unfair dismissal act.

3.—(1) This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training—

  • if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract, or
  • if his contract of employment was made before the commencement of this Act and was not in writing and the duration of the probation or training is 1 year or less

An employee with more than 1 year’s continuous service has protection against unfair dismissal and therefore cannot be put on a probationary period in the same way as a new external recruit.

However, although existing employees cannot be put on the same kind of probationary period as new starters, this does not mean that their development in their new role cannot be monitored, and regular review meetings and monitoring are still a good idea. If an employee is promoted, it is logical to assume they are a valued and dedicated member of the organisation. If they are now not performing as expected in their new role, it would be worth the manager discussing with them what has gone wrong and giving them an opportunity to improve.

It is potentially possible for new roles to be on a trial period, but that would need to have been made clear from the outset. If the employer uses a trial period they need to make it clear how long the trial period is, and what happens if either party feels the trial period has been unsuccessful. For example, the employer could specify that the person would return to their previous role. It is important to give this careful consideration, because often the previous role will have been filled, or the employee may not want to move back to their previous position.

In situations where an employee has been redeployed as an alternative to redundancy there is a statutory 4-week trial period (under the Redundancy Payments Act 1967), and if the trial is unsuccessful, the employee can leave and still get their redundancy payment. This statutory period can be extended by agreement between the parties, but that would need to be carefully documented.

If there is no trial period in place (and assuming the employee has no interest in going back to their old role) then it would be a question of going through a performance management process with the employee in their new role, i.e., setting clear objectives and review periods, and after a reasonable opportunity to improve, issuing a series of warnings eventually culminating in dismissal. Alternatively, the employer could take advice about the option of offering the employee a Settlement Agreement, as they may be able to reach an amicable settlement which could be more cost-effective than months of management time spent on performance management.

Key Takeaways: It is crucial that employers set expectations prior to the employees’ commencement in the role. The employer should provide clear goals, give constructive feedback, and have an open and frequent channel of communication. For any future internal moves, it would be worth getting a clear trial period in place. This should be included in the terms when an existing employee is offered a new position within the organisation.


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