Practical Guidance on Probationary Periods

by Laura Graham, Partner in the Employment Law Team at Reddy Charlton Solicitors

How long can a probationary period be?  Since December 2022[1], probationary periods of private sector employees should not exceed 6 months.

Probationary periods can be extended up to a maximum of 12 months only:-
(a) on an exceptional basis; and
(b) if it is in the interest of the employee.

The contract of employment should reserve the right for the employer to extend the probationary period at its discretion in certain circumstances.

Extensions to probationary period should be the “exception” rather than the “rule” and the basis for any such extension should be recorded.

If the alternative to extending the probationary period is the potential dismissal of the employee, the extension is likely to satisfy the requirement that it is “in the interest of the employee.”

What about existing employees who move roles? Can a probationary period be introduced for the new role?

The Regulations provide that “where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.”

Based on the wording of the Regulations, it appears that once an employee has served a probationary period of 6 months with an employer, they cannot be subject another probationary period with the same employer.

The benefit of a probationary period is usually that a lesser notice period applies to terminate the employment relationship during the probationary period and that any such dismissal takes effect before the employee acquires service to take certain statutory claims, like Unfair Dismissal for example.

Employees moving roles within the same employer will have continuity of service and therefore may already have the acquired service to take certain statutory claims so including a probationary period would offer little comfort in that regard.

There is nothing to prevent an employer from agreeing revised contractual notice periods with an employee for the first 6 months of employment in the new role, provided they are no less than the notice periods set out in the Minimum Notice and Terms of Employment Act.

What about probationary periods for Fixed Term employees?

The Regulations provide that the length of a probationary period in the fixed term contract of employment must be proportionate to the expected duration of the fixed term contract and the nature of the work.

A probationary period of 6 months is unlikely to be considered proportionate if the duration of the fixed term contract is expected to be 12 months.

If an employee is on sick leave during the probationary period, can the probationary period be extended?

Under the Regulations, a probationary period is automatically extended for the duration of statutory sick leave (currently 5 days).

Any period of sick leave that exceeds the statutory amount is not included. Accordingly, while the probationary period may be automatically extended by statutory sick leave, an employer should consider whether they can extend the probationary period “on an exceptional basis” and in the interest of the employee. Any such extension would need to be confirmed to the employee and documented.

Can we provide that our disciplinary policy does not apply during the probationary period?

Yes and this would be recommended.

How should we proceed with a dismissal during the probationary period?

The steps to take will depend on the reason for dismissal and what has been said to the employee already.

While a probationary employee will be unlikely to have service to take a claim under the unfair dismissal legislation, dismissal during the probationary period is not without its risks.

If an allegation of misconduct has been made against the employee, fair procedures will be engaged and any dismissal in breach of fair procedures could result in the employee taking injunctive proceedings to the High Court against an employer to restrain the dismissal.

Employees also do not need any service to take a claim under the Employment Equality Acts, the Industrial relations legislation and for penalisation for making a Protected Disclosure for example.

Specific advice should be taken prior to dismissing an employee during the probationary period.

[1] The European Union (Transparent and Predictable Working Conditions) Regulations 2022

About the author
Laura is a Partner in the employment law team in Reddy Charlton Solicitors. As an employment law specialist, Laura has significant experience in assisting employers and employees on the full range of legal issues that may arise during the employment relationship.
As well as providing advice on day-to-day issues such as employment contracts, managing grievance and disciplinary issues, workplace leave, restrictive covenants and reorganisations, Laura also has strong experience in advising on transfer of undertaking situations, and contentious employment disputes before the Workplace Relations Commission and the Irish Courts.
Working closely with the commercial team, Laura is attuned to the importance of seeking a balance between the commercial needs of business and the management of a business’ most valuable resource, employees.
Laura is a member of the Employment Law Association of Ireland and is a Registered Trade Mark Attorney.

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