Probation dismissals - the Devil is in the Detail
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Earlier this month we held our Annual Employment Review of the Year webinar, where we looked back at last year and discussed key case law for employers from 2020.
One such key case was undoubtedly O’Donovan v Over-C Technology[1]. That case again emphasised the fact that while probation is generally perceived as a lower risk period for employers when dismissing employees, typically because unfair dismissal rights do not normally arise, there can still be significant protection for probationary employees.
While employee's with less than 12 months' service are precluded from bringing an unfair dismissal claim, they are still protected under equality, protected disclosures, health and safety penalisation laws or, in the Over-C Technology case, the possibility of an injunction due to breach of fair procedures / natural justice rules. In that case, the plaintiff (a senior employee) successfully obtained a High Court injunction in circumstances where performance allegations were made without him being provided with a substantive right of response, thus raising issues of fair procedures and potential reputational damage.
Another area that we see frequently are claims under the Industrial Relations Acts either to the WRC or most likely to the Labour Court. Employees in dispute with their employers (such as those dismissed during probation) can take an industrial relations route to the Labour Court under the Industrial Relations Acts[2]. This can involve seeking an “investigation” of a “trade dispute” by the Labour Court. The Labour Court can hold a hearing and issue a “recommendation” whether the employer participates or not. However, the key point, and an important comfort for employers, is that these “recommendations” are not legally binding. Nevertheless, for many reasons including good internal employee relations and the desire to try to influence any negative publicity, some employers (including even non-unionised employers) may decide to participate in such a process.
In a series of such cases towards the end of 2020, the Labour Court emphasised its “clear and consistent” approach in such IR cases that probationary employees are entitled to fair processes on the same basis as employees with more than 12 months’ service. Employers should be mindful that, unlike the WRC, Labour Court recommendations are not anonymised and, leaving aside the employers freedom to comply with the recommendation or not, reputational issues can arise.
In another recent case from January 2021, the WRC[3] heard a claim by an employee effectively dismissed on the spot after seven months' service following an ultimatum by other employees. No fair procedures were applied and the employee's request for an appeal was disregarded. The WRC Adjudication Officer referred in his recommendation to the well-known Park Hotel Kenmare case from the Labour Court in 2018 – see our blog at the time here. The WRC Adjudication Officer reminded employers that, "where an employee is considered unsuitable for a permanent employment…..an employer has the right, during a probationary period, to decide not to retain that employee in employment. However….this can only be carried out where the employer adheres strictly to fair procedures". Compensation of €3,500 was recommended.
It is another reminder of the various exceptions to the traditional view that probationary dismissals can be effected without any risk to the employer. While it is still, generally, a better time for employers to consider dismissal before the employee acquires 12 months' service and thereby acquires full unfair dismissal rights, there is some devil in the detail and employers need to review the broader picture fully before proceeding.