We have recently seen the introduction of the Transparent and Predictable Working Conditions Regulations. These changes will have practical implications for both employers and employees, which should be factored into any working arrangements going forward. This month we are looking at probation.
For the first time, probationary periods are now the subject of statutory regulation. The Transparent and Predictable Working Conditions Regulations now restrict probationary periods to be no longer than six months, except where:
Where someone is starting with a new employer, the employee should be required to work a probationary period. This period can be for any length of time up to six months. Normally, the company disciplinary procedure will be specifically excluded during this period as it allows the employer the opportunity to assess a person’s suitability to the company, as well as to the position.
The other time a probation period should apply is where a person is promoted to a new position within a company. This is often for a period of less than six months, usually three, and again is to assess suitability to a new role within the company. Depending on the size of the company, an employee may be able to revert to their previous role if it does not work out, but in some cases where there are no vacancies, they may lose their job. The consequences of not succeeding should be clearly stated in any letter of appointment confirming the promotion.
The purpose of a probationary period is to ensure that the person who has been placed in a new position is suitable, not only in terms of their ability to do the job, but are also that they are a good fit within the team dynamic
Probation is a very important part of the employment contract. The purpose of a probationary period is to ensure that the person who has been placed in a new position is suitable, not only in terms of their ability to do the job, but are also that they are a good fit within the team dynamic.
Whilst on probation, an employer does have the discretion not to apply disciplinary procedures, and if that is intended, then it should be clearly stated in the terms and conditions of employment. However, the Labour Court has always taken the view that natural justice should be applied when considering someone’s continued employment under the probationary period. In this regard, the Labour Court maintains that where an employee is not being considered to be retained, they should be given the opportunity to respond to that consideration before the final decision is made.
However, it is interesting to note that the High Court has taken a different view on probation by distinguishing suitability to employment in the general context of the individual and the workplace, and whether the employer believes they are suitable to be employed in that company, where in such case there is no requirement to follow a process. This is as opposed to conduct issues, where if a person is misconducting themselves, they would be entitled to be made aware of any such allegation. They would also be given the opportunity to respond to such an allegation and be made aware of any information upon which the allegation has been made and be allowed to improve before a final decision is made.
This does not, in any way, restrict an employer’s right during the probationary period to let somebody go. However, where there is an allegation against the employee, they should be afforded the opportunity to respond to that allegation. Failure to treat someone fairly can always be referred to the Workplace Relations Commission, though generally such decisions are not legally binding.
As stated above, the new regulations have limited the probationary period to six months. However, it may be extended to reflect periods of absence, or where it is in the interest of the employee to do so.
Clearly if an employer is considering not continuing with someone, then they have a choice to either extend the probationary period, which would be in the interest of the employee, or not to extend it and let that person go. We do not know yet how this may change how employers will manage this, as employers may not be willing to officially extend probation, for fear that the regulations will be contravened, or that they will not be able to successfully let somebody go.
However, what is clear now is that employers should ensure that they put in a system of reviews for employees whilst on probation, to ensure that they are satisfied that they are suitable/unsuitable. In the case of employees, it is also in their interest to ensure that they are kept aware of how they are performing so as to ensure that they know if the employer is happy or unhappy with them, and that they know if they are performing satisfactorily. These steps will help to avoid a situation where an employer may decide to let the employee go, and the employee has not done enough to ensure they are doing their job properly.
John Barry
Managing Director, MSS
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