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The Probationary Period

September 01, 2019

There are many misconceptions out there that an Employer reserves the right to automatically dismiss an Employee during probation without any risk as the Employee would not have the requisite service of 12 months to bring a claim under Unfair Dismissals Acts 1977 to 2015.

Employers would be correct in saying that an Employee with under 12 months service does not have access to this specific piece of legislation in general, however if such an Employee believes their dismissal was unfair that does not mean that they cannot successfully challenge their termination; their claim would instead have to be taken under the Industrial Relations Acts 1946 – 2015.


The Probationary Period Process:

Here at Adare Human Resource Management, we are often get asked by Organisations how can they effectively manage Employee’s during their probationary period and ultimately how they can terminate in probation, as and when required.

The requirements regarding the dismissal of an Employee on probation generally depend on the terms of the Employee’s contract of employment and applicable policies. If the contract provides that the disciplinary procedure will not apply to Employees on probation, the Company would not be contractually obliged to follow the full disciplinary procedure prior to dismissing an Employee on probation. If, however, the contract provides that the disciplinary procedure will generally be followed in respect of all dismissals and does not make any exception for the dismissal of an Employee on probation, arguably, the Employer will be obliged to follow the disciplinary procedure prior to dismissing the Employee.

If it is your Organisation’s policy that the full rigorous of the disciplinary procedure will not apply for Employee’s on probation, there is still however, at a minimum, a requirement to provide the Employee with fair procedures and natural justice prior to their dismissal - regardless of their length of service. This should include:

  • Formally (in writing) inviting the Employee to a meeting regarding their performance / conduct during their probationary period and providing them with all associated documentation / evidence pertaining to the issues in question;

  • Giving them the opportunity to respond fully to the issues in question, and have his / her responses fully considered before any sanction is imposed;

  • Any sanction imposed must be a proportionate response to the alleged wrongdoing or issue.

  • The Employee should be given the opportunity to appeal any decision which has been taken.

Therefore, a scaled-back version of the disciplinary process should normally be applied.


Probationary Period Duration:

It should be noted that the above is only applicable in circumstances where an Employee has not been employed for more than 12 months. It is recommended that probationary periods should not extend for a period of greater than 12 months. The period of 12 months includes any applicable notice period on termination. If an Employee is dismissed while on a probation period but has at least 12 months’ service (including his/her notice period), he or she would be entitled to bring a claim for unfair dismissal and the Employer would be required to show that they followed their disciplinary process and applied fair procedures when making the decision to dismiss the Employee in similar fashion to the dismissal of an Employee who is not on probation.


Risks when terminating in probation:

As outlined above, Employees (regardless of service) can bring a complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Acts 1946 – 2015 if they have a grievance against their Employer about their treatment. Recommendations under the Industrial Relations Acts 1946 – 2015 are not binding on Employers, however, the parties are expected to give serious consideration to any recommendation.

In addition, Employees with less than one’s years’ continuous service are afforded protection arising out of dismissals by reason of one or more of the nine discriminatory grounds as outlined under the Employment Equality Acts 1998 – 2015 and may bring forward a claim to the Workplace Relations Commission.


Case law:

There was a landmark case decision given by the Labour Court in this area in late 2018 and relates to A Worker VS Park Hotel Kenmare (LCR21798).

This case was most notable in the media not only for its recommendation but also because of its famous hotelier, Francis Brennan.

The Worker claimed that he was unfairly dismissed from his employment after being called into a meeting with the Managing Director and told “this was not working out”. He claimed that he was headhunted by the Employer to accept a role as General Manager of the Hotel. As a result, he moved from Dublin to Kenmare to take up the role in January 2018 and was subsequently dismissed, without warning, 27th April 2018 by the Managing Director.

The Respondent disputed that the Claimant was headhunted and claimed that they were entitled to dismiss the Claimant during his probationary period by the giving of notice to that effect, as provided for in his contract of employment.


In this instance, the Court found:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.”


It was further noted that:

“This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

The Labour Court recommended that the Respondent should compensate the Claimant by the payment of €90,000.00.


If you have any questions surrounding an Employee’s probationary period then please contact the team at Adare Human Resource Management – info@adarehrm.ie / 01 5613594 to discuss how we can assist you.