Most permanent contracts of employment provide for a probationary period, usually of six months in duration. The purpose of the probation period is to allow the employer a fixed period of time to evaluate the suitability of the new employee for their role based on performance and behaviour.
Probation periods can often be misunderstood, especially when it comes to the need to terminate employment during the probationary, or extended probationary, period – termination during this period remains a tricky subject for employers.
It is a common misconception that employees can be terminated at will during the probation period. However, employers do need to carefully follow natural justice and fair procedures.
Employee with less than one years’ service are not covered by the Unfair Dismissals Acts, 1977 – 2015, however, they are covered by the Industrial Relations Act, 1969 (as amended) and The Employment Equality Acts, 1998 – 2011 and may pursue a claim through these avenues if they feel a dismissal was wrongful or in breach of their equality rights.
Key points for successful probation management:
- Plan your probation period as part of the On-boarding process for all your new hires
- Ensure you have clearly set out the length of time for the probation period and that the probation can be extended, and for how long.
- Include in the contract that employment is subject to a probation period, how long and how long it can be extended by.
- Have procedures on how you will manage issues during the probation period – specifying that you will implement an abridged version of your disciplinary procedures during this period or have a separate probation procedure.
- Have regular review points during the probation period to give feedback and guidance on performance or company standards.
- Whatever your defined procedures are, ensure you apply and follow them fairly during the probation period, this may well come under scrutiny if it is being looked at by the Courts. The Labour Court has awarded damages to the employee due lack of fair process, even though the dismissal is deemed to be justified.
- Document each stage of the process, where applicable; meetings, warnings, extensions, confirmations, terminations.
- Manage the probation process in a timely manner – if the period of probation passes and you have not confirmed anything with the employee, it may be too late to commence probation procedures a month or so after the probation end date.
Length of the probation period
Most commonly a probation period will last six months with an option to extend up to or by a further 5 months. For certain employment types, that may require a longer period of training or assessment, the initial probation period can be for 9 months with an option to extend by a further 2 months. Equally, for roles that may require an employee to be effective more quickly, a shorter probation period could be implemented.
Care should be taken where the period of probation, or extended probation, is longer than six months as, once contractual notice is added to the period of notice, dismissals in these cases could come within the scope of the Unfair Dismissals Acts and the employer may have to justify a dismissal under those Acts. Employees come under the protection of these acts once their 12 months’ service is completed.
It is crucial that you have the correct procedures in place for managing the probation period and that probation is clearly outlined in the contract of employment. Having a good starting point with clear expectations of what performance and conduct is required during this period, the support and training that will be provided and the mechanism that will be used to assess outcomes will make for easier resolution of issues, should they arise, at the point of review. In all cases where a dismissal occurs employers must ensure they give due regard to general principles of natural justice and provide employees with a fair process.
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We have developed a very practical workshop for managers on “Effective Management of the Probation Period” which just might be the toolkit you need to get a better outcome from your new employees. Contact us on 01 525 2914 or email@example.com to request some additional information on our range of services to help your performance management skills.
Laura Banfield, HR Consultant