Managing HR is challenging at the best of times! We are here to answer your queries and provide up to date HR advice on what is impacting businesses today.
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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 challenging 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 Acts.
An employer cannot apply a traditional probation period to an existing employee with more than 1 years’ continuous service because they already have unfair dismissal protection under the Unfair Dismissals Act, 1977 to 2015.
It is important to note that even if an employee has less than 1 years’ service, dismissing them after an internal move may still pose other claims including discrimination, penalisation, breach of contract, constructive dismissal or whistleblowing retaliation.
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 supported. In addition to a good onboarding plan for the new role, regular review meetings, setting expectations and giving feedback are all still valuable practices.
If an employee is promoted, it is logical to assume they are a valued and dedicated member of the organisation. If they don’t perform as expected in their new role, the manager should discuss with them expectations for the role, areas for development and give them an opportunity to improve. In addition, the manager should consider additional training, coaching and mentoring to support the transition.
It is potentially possible for new roles to be on a trial period, but this should be 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 employee 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). If the trial is unsuccessful, the employee can leave and is still entitled to their redundancy payment. This statutory period can be extended by agreement between the parties, but this should 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 the employer should manage performance by initiating a performance improvement plan with the employee in their new role, i.e., setting clear objectives and review periods, and after allowing a reasonable opportunity to improve, issuing a series of warnings which may eventually culminate in dismissal.
Key Takeaways
Employers should not place existing employees on new probation unless they have less than 1 years’ service and the probation clause is in their contract. Consider the use of a trial period for internal moves, but only if included in the offer of promotion. 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.
