How to manage employees on probation

What is probation?

While a job and a candidate can match perfectly on paper and even seem perfect during the interview process, it can be a different story once a candidate is in the role.

This is why most, if not all, employers take advantage of a probationary period to assess a new employee.

Although, with a robust selection process, a failed probation should be the exception rather than the rule, they do offer an additional level of protection.

These periods work both ways.

They enable you, as an employer, to create a safety net when hiring, providing the chance to see how the employee works and fits into your business, before committing longer term.

Likewise, they also enable the employee to get a good handle on the actual role and your business before fully committing to the role.

How long do probationary periods typically last?

A probation period will start from the moment an employee is hired.

Since 16 December 2022 there are now mandatory probationary periods in place in Ireland.

In the private sector, the probationary periods of employees should not exceed 6 months except in exceptional circumstances.

Where the probationary period is, on an exceptional basis, to be longer than 6 months, it cannot exceed 12 months and must be “in the interest of the Employee”.

(In practice it’s wise to cap at 11 months – for more on this, see below).

There is currently no further guidance on what is envisaged as being in the interest of the employee.

In practice, 3-6 months is the norm, although it can be shorter than this, or even extended by an employer on an exceptional basis (provided that the employment contract allows for such extensions).

The extension of a probationary period would be deemed to be on an’ exceptional basis’ where such extensions are the exception and not the rule.

Also, if an employee avails of certain categories of protected leave during the probationary period (e.g., maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave), then the probationary period can be extended by the employer for the duration of the employee’s absence.

During this initial period, some employment terms may be different, compared to those that are legally and/or contractually applicable after the probation period is complete.

Terms that may differ include arrangements relating to notice periods, truncated disciplinary processes, and additional benefits or allowances (e.g. a car allowance).

A bit like a cooling-off period, this recognises the fact that the employment contract is not yet fully in effect and can be cancelled (though potentially not with immediate effect).

Am I obliged to impose a probationary period in the first place?

No – although your ability to terminate the employment safely during the initial period of employment will be reduced if you don’t have one.

An employment contract that doesn’t contain a probationary period clause is very much the exception to the rule.

If you want to include a probation period for employees that you hire (and we recommend you do), it should be made clear throughout the selection and offer process and you’ll need to provide for it in your contract terms with them.

Without a specific contractual provision that includes the right to set a probation period, you can’t remove a bad hire as easily and you will have to rely on the contract’s normal notice provisions and dismissal process to terminate the engagement.

Can probationary periods be extended?

Yes, but they cannot be extended beyond 52 weeks by law.

A prudent employer will include provision in the employment contract that allows them to extend at their discretion.

It’s fairly typical in Ireland to allow for a further 3-month extension from an initial 6-month period (but, as referred to, these periods are not mandatory).

Is a one – year probationary period wise?

Not at all.

There are three points to note here:

• First of all, it may be more difficult to attract staff if they are subject to such a long probation period.

• While unfair dismissals legislation allows employers to use probationary periods, it caps them at 52 weeks.

• Separately, and most importantly, notice periods count as part of service. If somebody has a one–month notice period and you dismiss them at the end of month 12 of service, it will be too late – they will have the required 52 weeks of continuous service (obviously because 12 + 1 = 13), which means that unfair dismissal legislation will apply.

You should ensure that you do not inadvertently pass the 52–week threshold with any employee because total service to date + notice period = more than one year.

Can an employee bring a claim if they are dismissed during probation?

1. Generally, an employee cannot bring an unfair dismissal claim unless they have 52 weeks of continuous service.

This is subject to certain limited exceptions (there is no service threshold for dismissal relating to pregnancy, trade union membership and certain other grounds, for example).

2. In addition, there is no service threshold to bring a discriminatory dismissal claim.  This is where the employee claims they are dismissed because of their race, sex, sexuality, age or any of the other discrimination grounds.

3. An employee can in theory bring a wrongful dismissal claim during the first year – but such claims are quite rare.

4. Lastly, an employee dismissed during probation can seek a non-binding Recommendation from the Workplace Relations Commission (WRC) under the Industrial Relations Act, 1969.

What does all this mean in practice?

It means that:-

1. You don’t need to worry about an unfair dismissal claim (where an employee can be awarded up to two years’ remuneration) unless you dismiss the employee for being pregnant, being a trade union member or in certain other limited circumstances.

2. You don’t need to worry about an equality claim (where an employee can also be awarded up to two years’ remuneration) unless you dismiss the employee because of their race, sex, sexuality, age or for any of the other grounds prohibited in legislation.

3. You’re theoretically at risk of a wrongful dismissal claim if you dismiss during probation.

Wrongful dismissal means dismissal in breach of contract – and can only be litigated in the courts (the WRC has no jurisdiction here).

In the probation space, an employee typically brings a wrongful dismissal claim if they can establish that (a) they were entitled to fair procedures prior to dismissal but (b) the employer did not afford them those fair procedures.

Wrongful dismissal claims are rare – which means that the odds greatly favour employers.

They tend to be confined to high-level executive roles.

4. Lastly, under the Industrial Relations Act an employee can ask the WRC/Labour Court to examine their case and determine whether they were fairly dismissed or not.

The approach of the WRC/Labour Court tends to focus on fair procedures – did the employee have the right to fair procedures before they were dismissed?

Typically, the WRC/Labour court find that they do – but unless the employer agrees to be bound by the decision, these rulings are always non-binding.

In certain sectors (the public sector, for example) there may be a tendency to observe WRC/Labour Court rulings, but this is not obligatory.

However, a word of caution here.

It is advised that you always follow fair procedures in any dismissal, including during a probationary period, despite the lack of employee recourse to the WRC.

You should always ensure that the employee in question is afforded full and fair procedures in advance of any decision to dismiss on grounds of poor performance.

Should I have a shorter notice period during a probationary period?

Yes.  It’s legitimate to impose a shorter notice period – one week is probably the norm.

In addition, a good employment contract will include a clause allowing the employer to Pay In Lieu of Notice (“PILON”) which means that a problem probationary employee can be removed quite quickly and painlessly if needs be.

What should be in a probationary period clause?

Probationary period clauses should at a minimum include the following:

a) Stipulate the length of the probationary period – 3-6 months is common.

b) Allow the employer to extend at its discretion – if you are in the 3-6 month space initially, you can consider a 3-month extension.

c) Allow for a shorter notice period – it’s fairly common to provide for a 1-week notice period during probation (and you should ensure that you can terminate on this notice during the initial period and any extension).

d) Stipulate that the employee can be terminated for any reason or for no reason during probation.

e) Stipulate that the disciplinary procedure will not apply to a dismissal during probation.

The last two points are particularly important – and an employer should ensure that the clause deals with them.

Here’s an example of a Probationary clause:

‘Subject to satisfactory completion of the probationary period specified below, you will be employed on a full-time permanent basis until your employment is terminated by either party giving to the other the notice period specified in the notice clause’,

At any time during your probationary period, we may terminate your employment for any reason and for no reason by providing one week’s notice. You are entitled to no payment in lieu thereof.’

Our disciplinary procedure will not apply to any dismissal during your probationary period.’

Best practice for managing probation periods

Keep in touch and regularly review how you both feel

Make sure you freely enable two-way conversation and feedback during the probation period – this way, you can both allow each other to improve on any areas of underperformance before the result of the probation period is decided.

To help with this, set up regular ‘touch-base’ meetings where you can both get together to evaluate how the employee feels he/she is settling in and – if it’s necessary – to address any areas of disagreement between you concerning his/her performance so far.

Many businesses set a formal, interim probation meeting at a halfway point to see how things are going and if anything needs to be addressed.

These are a great benchmark by which to measure progress at the end of the probation period and to help make the decision whether to confirm the employee’s engagement within your business.

Keep good notes and share them with your employee

You should always keep clear and contemporaneous notes detailing the contents of your catch-up and probation meetings, along with any actionable steps agreed by you and the employee.

A good way to ensure a robust paper trail is to email your notes to the employee and ask them to confirm they’ve received, understand and (ideally) agree with them.

The aim, with all the above practices, is to avoid a situation where you decide not to keep the employee on and the employee accuses you of unfair dismissal because they weren’t given the chance to understand the role, improve any inadequate performance or to state their position in good time for a fair and constructive discussion to take place.

Deciding whether to pass or fail an employee

At the end of the probation period, you should invite the employee to a probation review meeting and let them know the outcome.

If the employee passes the probation period, you should inform them of this fact at the probation review meeting and then subsequently follow up in writing to confirm your decision.

Letter ending probation period and confirming employment

If the employee doesn’t pass their probation period, you have a right to dismiss the employee within a short amount of notice (usually 1 week).

Letter dismissing an employee at the end of their probation period

If the employee hasn’t quite met all expectations by the end of the probation period, but you want to give them another chance or perhaps some relevant training, you can extend the probation period – although, this should be the exception rather than the rule, and best practice would be to do so for no more than 3 months.

Letter extending an employee’s probation period

If you do decide to extend the probation period, you need to ensure your contract terms allow you to, and then let the employee know this is what you’re planning to do, before their original probation period is over.

You must also let the employee know exactly why they didn’t pass and what is needed to pass the extension.

Make sure you continue to assess and review the employee’s performance in the same way you did in the initial probation period, discussing your observations and any concerns with them at each stage and listening to what they say in response.

If you plan to dismiss the employee, you should invite them to bring a colleague (or trade union rep where relevant) with them to the final probation review meeting.

At this meeting, you’ll need to explain the reason for the dismissal and give the employee an opportunity to respond to your decision.

The employee’s colleague (or trade union representative) does not have the right to make representations on the employee’s behalf.

They are there purely to support the employee and be a witness to the conversation.

Providing you go ahead with the dismissal, the employee will then be entitled to be paid for their relevant notice period and to receive any holiday pay that’s owed to them.

You may find our probationary checklist useful to ensure you have all your bases covered when it comes to handling employees on probation.

Updated 19 January 2023