It has been eight months since the have the commencement of the Transparent and Predictable Working Conditions and with that has come a requirement to approach the application and management of probation in a fully compliant way.

Probationary periods were previously not subject to statute and were exclusively governed by the terms laid out in contracts of employments and/ or policy. However, the Regulations now provide that where an Employee is subject to a probationary period at the commencement of employment, that period shall not exceed six months, except in limited circumstances.

In those limited exceptions the maximum period may be extended to no more than twelve months. It is also possible to extend the probationary period beyond 6 months if the Employee was absent from work on certain grounds (e.g., leave) during the probationary period. Probationary periods for fixed-term Employees must be proportionate to the expected duration of the contract and nature of work and any renewal of the contract should not attract a new probationary period.

Purpose of the Probationary Period

The purpose of a probationary period is to monitor progress and suitability for the continuation of employment. But the obligations of an Employee demonstrating their suitability and competence in the role can only succeed if the Manager provides the necessary training and support enabling the Employee to meet the required standards.

With the Transparent and Predictable Working Conditions now applicable it is more important than ever to ensure the proper assessment and procedures are applied.

Top Tips in Managing Probationary Periods

• Clearly outline expectations of role identifying key deliverables and how success is measured

• Communicate clearly the purpose of the probationary period

• Record the objectives of the role on a probationary review form

• Diarise the interim and final probationary review meetings

• Conduct regular progress reviews and maintain records of all assessments and any follow up actions required by the Employee or support actions required by the Manager

• Ensure any shortcomings in the role and details of supports to enable improvement are discussed with the Employee and maintain records of both

• Record any improvement plan and supports agreed and highlight risk to employment where shortcomings persist

• Conduct final overall assessment shortly before the end of the probationary period and arrange to meet with the Employee to advise him/her of the outcome.

• Where probation is successful the Line Manager should advise the Employee of this at the meeting, and this should be confirmed in writing. The Employee should be advised that their position has been confirmed.

• Where probation is extended, this should be done in line with the probation procedure in the Employee’s contract of employment and in compliance with the EU (Transparent and Predictable Working Conditions) Regulations and confirmed in writing.

• Where employment is not being confirmed due process should be applied meaning an Organisaton should apply a process in a similar way to the dismissal of an Employee who is not on probation.

Dismissal During Probation

The requirements regarding the dismissal of an Employee on probation generally depends on the terms of the Employee’s contract of employment and the relevant policies. While it is best practice for a contract of employment to detail that the full rigours of the disciplinary procedure will not apply to Employees on probation, an Organisation should still apply fair procedures and natural justice to the Employee.

This can include:
• Warning the Employee that their performance and/or conduct is not satisfactory.
• Allowing a reasonable chance to improve performance and/or conduct.
• Assisting the Employee to improve (e.g., providing training, support).
• Providing advance notice of the risk to employment, advance notice of any evidence relating to the shortcomings, advance notice of the review meeting, permitting representation, adjourning any final review meeting prior to deciding whether or not to retain the Employee.

Following thorough consideration and a meeting would be reconvened to advise of the outcome. Where termination is the outcome, this should be detailed in writing with the reasons clearly stated and explained. Provision of adequate notice per their contract of employment is essential and outlining details of an appeal mechanism important.

With any purported dismissal during probation, it is strongly advisable that the Employee has continuously been made aware of the shortcomings relating to their performance or conduct prior to the decision being taken.

And where a scaled-back version of the disciplinary process is applied, this must only relate to those Employees on probation who have less than 12 months service (including notice). All probationary periods serve a specific purpose, and it is of paramount importance that effective practices and management are applied to both enable and ensure the appropriate use which is fully compliant with all employment legislation. 

Finally, Employers must be aware of the risks that exist with any non-compliance. An Employee who has been dismissed on probation can still lodge a claim of Unfair Dismissal under the Industrial Relations Acts where the service requirement of 12 months does not apply, and it is not uncommon for claims of unfair dismissal under this Act to arise. It is also possible for claims of dismissal to arise under the Employment Equality Acts 1998 – 2015 or where the Employee is making a protected disclosure.