Updates to Probationary Periods
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force in Ireland on 16 December 2022.
These regulations introduce significant changes to the law on contracts of employment and working conditions for employees, but the new rules in relation to probationary periods in contracts of employment are of particular importance.
New Rules on Probationary Periods
In the private sector, the probationary periods of employees should not exceed 6 months. ‘In the interest of the employee’, the maximum duration for a public servant's probationary period is now 12 months. There is no further guidance on what is envisioned as being in the interest of the employee.
An employee may avail of certain categories of protected leave during the probationary period (maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave). If this arises, the probationary period shall be extended by the employer for the duration of the employee’s absence.
These Regulations also amend the Protection of Employees (Fixed-Term Work) Act 2003 to require that probationary periods in fixed-term contracts be proportionate to their duration and nature. There must be no probationary period for contracts that are renewed or extended (for the same work).
If an employee was subject to a probationary period which exceeded 6 months on the date the Regulations came into force (16 December 2022), and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the earlier of:
(i) the date the probationary period was due to expire
(ii) 01 February 2023.
We therefore recommend that employers review their current contracts of employment to check if any employees have contracts with probationary periods for longer than 6 months. This includes circumstances where any initial probationary period has been extended, as these periods should have expired on 1 February 2023 or earlier.
Probationary periods are a very useful tool for both employers and employees to trial the working relationship and ensure that the parties are a good fit and work well together. A well drafted contract will normally provide for a short notice period during the probationary period (customarily one week).
Employees will not usually have the benefit of the Unfair Dismissals Acts until they have achieved 12 months’ continuous service. Termination of an employee during the probationary period, and in accordance with the contract, can be a lower risk and efficient way to terminate an underperforming employee.
A probationary period does not, however, give an employer automatic authority to terminate employees and if allegations of misconduct, protected disclosures or discrimination, etc., occur legal advice should be sought.
