Changes to Probationary Period

Recent changes in the law affecting probationary periods in Ireland

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the 2022 Regulations) became law on 16 December 2022.

These regulations have had a major impact on probationary periods in Irish employment law. Before the introduction of the regulations, probationary periods were covered by contract law. There was no legislation dealing directly with probationary periods in Ireland.

The regulations have introduced changes to the Terms of Employment (Information) Act 1994 and the Protection of Employees (Fixed Term Work) Act 2003 as well as heralding changes in other areas of employment leglislation.

How does this affect new, or recent, employees?

For an employee who started working before 16^th December 2022, their maximum probation period is six months. If it was, say nine months with six months already served, then the probationary period expires, as the period shrinks to six months, which have already been served.

For all employees who start working after the 16^th December 2022 the maximum period of probation which thaey can be asked to serve is six months. See the exception below.

The exception to the probation period of six months

Regulation 10 creates an exception. It provides that probationary periods may be longer than six months in exceptional circumstances where it is “in the interest of the employee”. It cannot extend beyond twelve months.

This may turn out to be a grey area as the term “in the interest of the employee” has not been defined in the Regulations.

There is no guidance as to when an employer must make reference to extending the probationary period “ in the interest of the employee”, should it be at the start or during the six months of the initial period. I believ that best practice would suggest agreeing all terms of employment at the commencement of employment.

What if the employee is absent during the probationary period?

If the employee is absent from work during the probationary period, then the period is suspended for the length of time that the employee is absent.

Exclusivity of service

An employer can no longer prevent employees from taking up a second job with another employer as long as the Organisation of Working Time Act 1977 is not breached and it does not clash with the employee’s work schedule commitments to the first employer.

There are objective grounds for restricting an employee from obtaining parallel employment. These areHealth and safety,

• Protection of business confidentiality,

• Integrity of public service,

• Avoidance of conflicts of interest.

It is recommended that you include any reasons for restricting parallel employment in the contract of employment and/or the Written Statement of Main Terms.

What should I do next as an employer?

You should start to review your contracts of employment and employee handbooks.

If you have relied on an exclusivity clause in the past, you should check to ensure that it complies with the new regulations.

As a busy employer I do not have the time to review all of this. Where can I get help?

Our exoerienced employment law experts are available to help with this task. You can concentrate on your business, while enjoying the peace of mind that comes from knowing that leading experts are handling the matter for you.

Click here to contact us today. Take care. Take advice.