Misconceptions with Probation

Probation period is so a manager can monitor and review an employee’s work objectives, goals and professional development. It should involve a series of informal/formal conversations where they are coached, provided with support and feedback.  

 

There is a misconception that no fair procedures or process is required when managing a poor performing employee during their probationary period. Some businesses mistakenly believe that they can ask that employee to leave with immediate effect and without informing them of the reasons for the dismissal or give them the opportunity to improve. While the Unfair Dismissals Acts 1977 – 2015 provides protection for employee’s employment after one year’s continuous service, employees on probation do have protection and can take a claim for unfair dismissal under the Industrial Relations (IR) Acts 1946 – 2015.  

 
An employer’s application of fair procedures to employees on a probationary period will be scrutinised in the event of a claim under the IR Acts. In the absence of a formal disciplinary procedure and/or an employer’s adherence to a disciplinary procedure, the Labour Court would award compensation to an employee as no fair procedures were followed. 

 

In the recent Labour Court case Beechside Company Limited T/A Park Hotel Kenmare vs A Worker the employee was hired in January 2018 as a General Manager on a three-year contract and they had relocated from Dublin to Kenmare. On April 27th he was dismissed without warning when he was informed that “it was not working out”. He took a case under the Industrial Relations Act 1946 – 2015 claiming unfair dismissal. The Labour Court heard both sides and recommended the employer to pay the employee €90K. 

 

The Labour Court made their recommendation based on the lack of fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I No: 146 of 2000

  • The employee was not informed of any performance issues throughout his time with the hotel 

  • He was not given any warning that his role was in jeopardy 

  • He was not afforded the right to representation 

  • He was not given a reason for his dismissal  

  • He was not afforded the right to reply 

How can businesses ensure they follow fair procedures when managing a problem employee during probation and avoid a claim under the Industrial Relations Act or potential a claim under the Equality Act? 

 

The first step is to hold regular review meetings. These could be a mixture of weekly or bi-weekly informal chats and formal review meetings that could be held on month one, month three and prior to the probationary period ending. The benefits of these meetings are: 

  1. They will help you assess the employee’s performance and how they work with the rest of the team 

  1. Address any conduct or absence issues 

  1. Minimise the risk of an employee passing their probation without any review meetings  

If the employee is not working out, we have a recommended three step process that follows fair procedures without having to use the full disciplinary process. These are: 

 

Stage 1-The ‘needs to improve’ stage  

  • Employee is invited to a formal probationary review based on any performance/conduct/attendance issues  

  • Ideally to be initiated if informal meetings show an area which needs improvement  

  • Documentation given in advance  

  • Right to representation (may decide against this at this point)  

  • Timeline for improvement determined (ideally 1 month)  

Stage 2-The ‘at risk’ stage  

  • Employee’s performance/conduct/attendance has not improved by the agreed date  

  • Second formal probationary review initiated  

  • Documentation given in advance  

  • Right to representation  

  • **keyword- “AT RISK” - Employee must be aware that their continuation of employment is at risk of not passing their probation  

  • Revised timeline for improvement determined (ideally 1 month)  

Option 1: Consider extending the probation if needed. Ensure you have a clause in their contract that allows you to extend the probationary period and / or: 
Option 2: Formal warning  

 

Stage 3- The ‘final’ stage  

  • Employee’s performance/conduct/attendance has once again not improved by the agreed date 

  • Third probationary review initiated 

  • Documentation given in advance 

  • Right to representation 

Option 1: Further warning and extend probation (can be extended to a maximum of 11 months and/or: 
Option 2: Terminate employment  

  • Right to appeal termination 

  • Right to representation 

If you have concerns about an employee on probation and would like further advice, please contact Emma on 01 605 1668 or at emma.crowley@sfa.ie  or visit our HR and Employment Law advice section on www.sfa.ie  

 

 

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SFA E-zine - The Tuesday Edition
SFA in the media
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SFA meets European Commission Negotiator Michel Barnier in Dublin
Small Business Manifesto
Misconceptions with Probation
New Irish Domain Profile Report published
Business Connect 2020
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