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What is a probationary period?

A probationary period is known as a trial period of employment during which an employee is employed only subject to satisfactorily completing this period of time. Probationary periods are mainly used with new employees.  If the employee fails to meet expectations and is not suitable for the role, the period provides employers with a safety net to terminate their employment in line with legislation.

How long do probationary periods last?

Typically, a probationary period normally lasts 3-6 months to give the employer a sufficient length of time to assess the employee as a suitable, long-term addition.

What are the new legislative changes for probationary periods in Ireland?

In December 2022, amendments were made to the Terms of Employment Act 1994, which is the legislation that requires employers to issue employees with written statements of their terms and conditions of employment. Under the new legislation, probationary periods can no longer exceed 6 months. Only in exceptional circumstances, the probation can be extended for up to a further 6 months (up to a maximum of 12 months in total).

The probation can be extended where it is in the employee’s interests or where the employee has been on extended leave, such as sick leave, during their probation. The exception of ‘employee’s interests’ has yet to be specifically defined. It can also be extended where it is justified by the nature of the work, for example public service employment.

What if I was on a probationary period before the amended legislation commenced?

If an employee who commenced employment prior to 16 December 2022 is subject to probation of longer than 6 months and the employee has completed at least 6 months of the probationary period, then it will expire by 1 February 2023, or the date on which the probationary period was due to expire (if earlier).

Do probationary periods apply to fixed term contracts?

Yes, probationary periods do apply to fixed term contracts. The new legislation states that the length of any probationary period must be proportionate to the expected duration of the contract and the nature of the work. A new probationary period cannot be imposed in any renewal of a fixed term contract for the same role.

What happens when an employee is dismissed during the probationary period?

If an employer decides to terminate an employee’s employment during their probationary period, they should be invited to a meeting to discuss the reasons for termination. The employee should then be followed up with a confirmation of the termination, the reasons behind the termination and their last date of employment. The Unfair Dismissal Act will only apply if the employee is dismissed due to  trade union membership or activity, pregnancy-related matters and entitlements under maternity protection, parental leave, adoptive leave, parent’s leave, paternity leave, force majeure leave or carer’s leave legislation.

What should be the next step for employers regarding probationary periods?

Employers should ensure that the 6-month probationary period is featured in their employment contracts for the awareness of employees. Additionally, employers should ensure that suitable performance measures are put in place during an employee’s probationary period to accurately assess if they are suitable for the role.