In a recent blog on issues facing employers in probation dismissal situations, we noted a High Court injunction from 2020 where a senior employee had successfully obtained a High Court injunction following his probation dismissal - O’Donovan v Over-C Technology. While such probation injunctions are relatively rare, we noted this as one of the risk factors to be considered by employers when employees are dismissed during probation.
In a very noteworthy development for employers, the Over-C Technology case has now been overturned on appeal.
What did the Court of Appeal (CA) say?
Every case will naturally turn on its own particular facts and it is not always safe to draw too broad a precedent. The CA decision is nevertheless very illuminating and is an important contribution to the body of case law on employment injunctions generally.
In a detailed judgement, the CA considered the nature of the complaints actually been made against the employee and whether these amounted to allegations of misconduct or merely poor performance. This was important as the CA ultimately held that natural justice did not arise in this situation as the employer terminated the employee's contract for poor performance (as opposed to misconduct).
The CA also went on to make very important findings about the nature of a probationary period and the duty or otherwise to provide reasons for a dismissal. It held that during probation an employer must be free to terminate employment for no reason simply because it forms the view that the intended employment is, for whatever reason, not something which it wishes to continue with.
It concluded that a court could not imply a right to fair procedures in relation to assessment of an employee's performance during the probationary period as this would negate the whole purpose of probation. However, it drew an important distinction between allegations of poor performance and misconduct and held that the employer complaints in this case were not for misconduct. The CA determined that the employee was dismissed pursuant to an express contractual term that entitled the employer to dismiss him if his performance was substandard and it noted that he was paid in lieu accordingly.
What does this mean for employers?
Remember, this is not a statutory unfair dismissal case, which is very different. The employee did not have sufficient service to bring an unfair dismissal claim to the WRC, which meant that he was restricted to other potential causes of action such as this attempt at a High Court injunction.
We are always at pains to point out that the devil really is in the detail and that many employment law cases are fact sensitive. For example, the fact that the complaints by the employer in this case were performance related and did not constitute allegations of misconduct was ultimately of critical importance. However, as we have already seen, this case has already been appealed and overturned once and could be appealed again to the Supreme Court and so the story is not necessarily over yet
Written by Barry Walsh.
 Court of Appeal Record Number 2020/148. Decision of 16 February 2021.
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