30 ADVISOR: HR
Pay attention to probation A probationary period within employment helps businesses ensure new employees are the right fit for their business. However, it’s vital to ensure that all aspects of the probationary period are clearly outlined and adhered to within the employment contract, writes The HR Suite’s Caroline McEnery
CAROLINE MCENERY
managing director, The HR Suite
T
he purpose of a probationary clause in an employee’s contract is to assess the employee’s suitability and match for the company. Many employers require an employee to have successfully passed their probationary period; this must be explicitly stated within the employee’s contract. To ensure adequate support is offered to the employee when starting with the new company, the employer must ensure that they are meeting with the employee regularly during the probationary period to assess their performance in their new role, issue the appropriate documentation as support and any additional training which the employee may require. It is important to note that all meetings are recorded and a copy submitted to the employee’s file.
Clearly stated terms
After starting a new role, employers must ensure they meet regularly with a new employee during the probationary period to provide the support they require
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It is imperative employers require employees to successfully pass a probationary period prior to being made permanent. A probationary period within an employee’s contract is on average between six and 11 months of service. This must be stated in the employee’s contract. It must be noted that a probationary period cannot exceed 12 months’ service, this includes the notice period which is required after 13 weeks of service. Before 13 weeks’ service, no notice is required. However, it is best practice to give an employee at least one week’s notice if the employee is deemed unsuitable for the position prior to 13 weeks of service after review. Employers should also note that any reduction of the notice period during the probationary period cannot be any shorter than that provided by statute. Length of service
Minimum notice
Thirteen weeks to two years
One week
Two to five years
Two weeks
Five to ten years
Four weeks
Ten to 15 years
Six weeks
More than 15 years
Eight weeks
The reason as to why an employee’s probationary period should not exceed 12 months is because an employee may then bring a claim under the Unfair Dismissals Act 19772015. If they feel they have been unfairly dismissed, this act entitles employees to take a claim after 12 months of continuous service. For example, an employee would have recourse under this legislation if they are dismissed at the end of a 11 month probationary period and where their contract provided for one month’s notice, as the notice period would be included in the calculation of length of service. The wording of probationary periods may sometimes give rise to a possible construction that the probationary period is in itself a fixed term within the contract. If a contract were to state for example, ‘The first six months of
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this contract shall be a probationary period’ this might give rise to a claim on early termination, e.g. after one month, that the employee is entitled to be paid the balance of five months’ salary. The wording of the clause should make it clear that during a probationary period, the employment may be terminated on specified notice which is often shorter than the notice required to terminate the contract after the probationary period has ended.
Court rulings As explained above, an employee does not have the requisite service to claim for unfair dismissal during a probationary period when the length of service is less than 12 months. Employers were made aware of a decision which was made by the High Court to grant an injunction in the case of Donal O’Donovan -v- Over-C-Technology Limited. This case was in respect of a probationary dismissal in absence of fair procedures as per the company’s disciplinary procedure. The Court of Appeal has restored our understanding of probationary processes by issuing a decision to overturn the previous ruling that fair procedures must apply as the dismissal occurred as a result of poor performance, not misconduct. Notwithstanding the above restoration, an important learning for employment contracts has emerged in that Mr. O’Donovan’s contract of employment contained a clause that allowed for the termination of the contract for no reason during his probation. Therefore, prudent employers will now be looking at their contracts to ensure this clause is updated accordingly to include this terminology.
Maintaining good HR practices Termination of a contract is permitted for poor performance during the probation period. However, it would be vital that employers continue to adhere to good HR practices. This includes meeting the employee regularly, providing constructive feedback, re-training and any other additional supports to ensure the employee has been given every opportunity to get to the standard expected by the company. Underperforming employees should be informed that failure to improve may result in termination of employment on the grounds of failing to pass their probation. Good documentation practices should be adhered to, in order to protect the company from any other possible routes of redress for the employee. Once these elements have been met and the employee has continued to fail to reach the standard required of them by the business, they should be invited to a final probationary review meeting where the termination of employment may be communicated. This invite should include that the potential outcome of the meeting may result in termination of employment. ■
