Contractual Essentials – Probationary Period

Last updated: June 22nd, 2022

Employers very often hire staff members on the strength of CVs, application forms, and interviews – without having the opportunity to observe those individuals in the working environment from a practical perspective.

However, just because an employee looks good on paper and interviews well does not necessarily mean they will assimilate well into a company and meet the required standards of their role.

The question, therefore, is what options are available to an employer to overcome these issues. The answer is a robust probationary clause in both contracts of employment and employee handbooks which gives flexibility to employers to observe and monitor a new employee’s suitability.

We advise that each appointment you make as an employer be subject to the successful completion of a defined probationary period. This should be made clear to the new employee in the offer of employment, the contract of employment and the employee handbook.

Typically, probationary periods are defined to last for 3 months, 6 months or 9 months. However, they can last anywhere from 1 month to 11 months. It must be noted that probationary periods should never last for 12 months or more.

If the employee successfully completes their probationary period, they become a permanent member of staff. However, if the probationary period demonstrates that the employee is unsuitable for the role, that employee’s employment may be safely terminated – provided that correct procedures are followed.

During the probationary period, regular probationary review meetings with the new employee should take place. At these meetings, employers should discuss the employee’s progress to date, the areas of work they are succeeding in, and the areas of work that require improvement. If areas of improvement are identified, employees should receive training and support to reach the required standards.

If by the end of the defined probationary period, the employer has the option to extend the probationary period to offer the employee a further opportunity to improve. The extension must never be such that the combined probationary period exceeds 11 months.

For example, an employee is subject to a defined probationary period of 3 months. After 2 months, a probationary review meeting takes place and certain improvements are identified. Training is given. A further probationary review meeting takes place at the end of month 3.

However, further improvement is necessary. At that meeting, the employer can inform the employee that the decision has been made to extend their probationary period for a further 3 months (up to a total of 6 months) to give that employee an opportunity to attain the required standard. That employee is then given support and training to reach that standard.

In the event that an employer wishes to dismiss an employee on the basis of unsatisfactory completion of the probationary period, we recommend a defined procedure is followed.

The employee ought to be invited to attend a probationary review meeting. At that meeting, the concerns are put to the employee, who has an opportunity to provide explanations. Following that meeting and having considered the responses, the employer can write to the employee to inform them of the unsatisfactory completion of their probation, and therefore inform them of their dismissal. The employee should be given the opportunity to appeal against any dismissal.

If an employee’s contract allows, employers may also be able to address misconduct issues through the probationary review process, as opposed to the usual disciplinary process.

If you have any questions in relation to probationary periods or would like to introduce one into your contracts and handbook, please don’t hesitate to contact the advice line on +353 1 886 0350.

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