The probationary period
Some truths and some myths
It is always advisable to have a probationary period when starting a new employee's career with your business.
It gives you both time to make sure that you have made the right decision.
In order to avail of a probationary period you must include it in the employee's contract of employment and the individual must be aware that their job depends on the obligation to successfully complete same.
Be careful when drafting the letter offering the job to the employee. Make sure that it refers to a probationary period. Only include what is essential in the letter.
In order to keep within the exemptions as laid down in the Unfair Dismissals Act 1997 – 2007, the probationary period (including holiday entitlements and the employee's notice period) must not exceed twelve months.
I can sack the employee with ease during the probationary period. Myth!
A decision of the Labour Court in January 2011 has debunked the myth that you can sack an employee on a whim if they are on a probationary period. It held that the employer should have followed either it's own disciplinary procedures or those outlined in the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000, when dismissing an employee on probation. (Irish Postmasters Union – and- A Worker ) The court in that instance awarded €30,000 in compensation. This highlights the need for expert advice when considering the dismissal of a worker.
Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, Download here
What should I add to a contract of employment to deal with this?
You should develop procedures for dismissing a worker while on a probationary period. Then you should incorporate them in the standard contract of employment which you offer to new employees.
If you fail to do this, then your existing dismissal procedures must be followed, when dismissing a worker on probation.
The Probationary policy should set out how issues of performance, conduct or suitability for the role will be dealt with.
The employment contract should state that the probationary Policy will be implemented in respect of all workers on probation, and not the Disciplinary Policy.
Remember that in dealing with grievances and disciplinary matters you should always follow the rules of Natural Justice.
The employee should sign the contract. As part of employee induction the new worker should be briefed on all of the procedures referred to in the contract of employment, and should sign an attendance sheet for the briefing. The use of an employee handbook is a very useful way to communicate the rules and regulations of the business. This should be included in the briefing and an acknowledgement form should be signed by the employee confirming receipt of the handbook and agreeing to be bound by the company's policies.
How can I extend the probationary period?
Be careful, not to extend the period beyond twelve months. After twelve months, the worker can avail of the benefits of the Unfair Dismissals Acts 1977 -2007.
You can extend the period if there is provision to do so in the contract of employment or staff handbook.
Hold probationary review meeting at set points in the probation period. Give feedback to the employee. The final probationary review should assess the employee's performance and suitability.
You will either confirm the appointment, dismiss the employee or extend the probationary period.
If dismissal is to be considered, you must hold a disciplinary hearing and only make the decision after hearing all sides. You must give the reasons for dismissal in writing to the employee.
If a decision to extend the period is made then this should be communicated to the employee in writing, giving the reasons why and the expected improvements and the review schedule.
Is there a DIY solution to drafting a contract of employment with a probationary policy ?
Yes. We advise you to get help from our experts. However if you want to do it yourself you can download our updated employment contract document, together with our simple guide to completing it . You can opt to have the completed document reviewed by one of our experts for peace of mind. Just click on the green button to view our selection of employment law documents to help reduce your legal expenses.
What action can an employee take, who has been unfairly dismissed during a probationary period?
An employee who has been unfairly dismissed during a probationary period can pursue a claim under any of the following:
A claim under the Industrial Relations Act 1969 (as amended)
A Civil Court action for breach of contract/ wrongful dismissals
A claim under the Equality Acts 1998 – 2004 , where one of the grounds apply.
- A claim under the Unfair Dismissals Acts where the probationary period has extended past twelve months.
Where can I get help and advice on employment law in Ireland?
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