Generally speaking, employees can be dismissed with relatively little risk during the probationary period as an employee can, save in certain limited circumstances, only bring a claim for unfair dismissal if he or she has one years’ continuous service. However, notwithstanding this, there are a number of important questions that should be asked before the decision to dismiss is made as follows:
- Does the employee have one years’ service? When calculating the employee’s length of service, it is important to include the employee’s notice period as that the notice period is included for the purpose of calculating length of service. For example, if an employee has a one months’ notice period, the employee’s employment should be terminated after reaching 10 months service at the latest (which allows for some leeway).
- Do any exceptions to the one years’ service rule apply? An employee can bring an unfair dismissal claim even if he or she has less than one years’ service where they are dismissed for: (i) having made a protected disclosure under whistleblowing legislation; (ii) trade union membership or activity; (iii) exercising rights under the Maternity Protection Acts 1994 (as amended), the Parental Leave Act 1998, the Adoptive Leave Acts 1995 (as amended), the Carer’s Leave Acts 2001 and the Paternity Leave and Benefit Act 2016; and (iv) exercising rights under the National Minimum Wage Act.
- Is the dismissal conduct related? If the dismissal is conduct related, the company should proceed with some caution as all employees are entitled, as a matter of law, to fair procedures irrespective of the length of service. If an employee has been accused of misconduct a disciplinary process should be followed before the dismissal takes place failing which the employee may apply to the High Court for an injunction restraining the dismissal. Of course these types of claims are relatively uncommon and are generally only brought by high earners or senior members of staff.Employers are often reluctant to follow the formal disciplinary procedures in a probationary dismissal as those formal procedures can take a number of weeks to conclude during which time the employee could accrue one years’ service. It is therefore recommended that probationary clauses include a statement to provide that the organisation’s disciplinary policy shall not apply to a dismissal during the probationary period. The insertion of such a clause will often enable an organisation to adopt a more flexible and possibly shorter disciplinary process.
- Is the dismissal performance related? If the dismissal is performance related, the organisation should consider whether it has a performance improvement plan (PIP) in place which applies during the probationary period. If an employee is dismissed for performance reasons during the probationary period and the organisation fails to follow the PIP prior to the dismissal, again, the employee could technically apply to the High Court for an injunction. However, these applications are rare and, depending on the organisation’s risk appetite, an organisation may decide to proceed with the dismissal without following the PIP. To avoid this scenario arising in the first place, it is recommended that probationary clauses include a statement to provide that the organisation’s PIP shall not apply to a dismissal during the probationary period. Likewise, a probationary clause should not, ideally, place an obligation on the organisation to conduct reviews or to monitor the employee’s performance during the probationary period unless these reviews actually take place as a matter of practise.
In order to mitigate against the risk arising in relation to dismissals during the probationary period, organisations should review their probationary clauses to ensure they provide for:
This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie
- Shorter notice periods
- PILON provisions
- Exclusion of the disciplinary policy during the probationary period
- Exclusion of the performance improvement procedure during the probationary period
- Extension of the probation period
- No rights to regular reviews and monitoring