Dismissal During Probation

November 19, 2020

DISMISSAL DURING PROBATION 


IS DISMISSAL DURING PROBATION REALLY AT THE EMPLOYER’S DISCRETION?


Employers would be aware that it is standard in Terms and Conditions of Employment to state that whilst a person is on probation, they are not subject to the terms of the Company disciplinary procedures. This clause was inserted because, in its absence, it has been argued in the past that a person on probation was subject to the disciplinary process which, of course, could extend beyond the probationary period. Thus, making termination of employment on grounds of suitability difficult within the twelve-month period thus falling under the Unfair Dismissals Acts.


However, it has become clearly established that any person is entitled to fair treatment when their employment is being terminated. In the recent decision of the Labour Court, LCR 22257, it stated “This Court has been clear and consistent in its view that workers on probation are entitled to the same fair processes that are applicable to workers with more than 12 months service with their employer, prior to any decision being taken to dismiss.


The Court is not satisfied that the worker in this case was afforded a fair process.” The Court awarded compensation of €5,000 to the employee concerned.

The Labour Court also awarded compensation of €18,000 in a case where an employee, who had successfully completed their probationary period, but had not completed 1 years’ service was terminated and again fair procedure had not been followed. (LCR22255)


This should be a salient reminder to all employers that they cannot terminate employment without any risk where the employee has less than one years’ service or is on Probation.


Any employer who is considering terminating a person’s employment should not make these decisions lightly. We recommend employers consider the process they follow and ensure they have treated the employee fairly. Such treatment includes making the person aware of any difficulties with their performance during their probationary period and that they could be dismissed if there was no improvement.


Only after having such discussions and there is no improvement, consider termination of employment. We would also recommend employers to make notations of any discussions regarding performance during a probationary period and not rely simply on verbal discussions which may have taken place during the course of a working day.


Finally, it should be noted that an employee should be advised, in advance of any such meeting that their employment may be terminated and that they may be accompanied by a work colleague or representative if they so wish.


Failure to do this will leave you exposed to claims and awards of compensation, and any decision appearing on the WRC and Labour Court website.


Should you require any further information or support please feel free to contact MSS, The HR People, and we will provide you with appropriate guidance on this or any additional matter in relation to Employment Law (01)8870690.


FURTHER DETAILS ON THE UPDATE OR ABOUT OUR SERVICES MAY BE OBTAINED

FROM: JOHN BARRY/TARA DALY/ HUGH HEGARTY AT TEL: 01 8870690


New Button

New paragraph

   

By Tara Daly June 13, 2025
When “Better Than Statutory” Really Matters
What Irish Employers Need to Know About the Employment (Contractual Retirement Ages) Bill 2025
By Tara Daly June 12, 2025
What Irish Employers Need to Know About the Employment (Contractual Retirement Ages) Bill 2025. The Irish government has taken a significant step forward in reshaping retirement policy in the workplace with the publication of the Employment (Contractual Retirement Ages) Bill 2025. Once enacted, this legislation will introduce a new employment right, allowing, but not obliging, employees to remain in work until they reach the State Pension age.
: A Practical Guide for Employers
By Tara Daly June 12, 2025
A Practical Guide for Employers. In today's dynamic workforce, fixed-term and specified purpose contracts have become a common feature across various sectors in Ireland. Whether it's covering maternity leave, managing seasonal workloads, or executing specific projects, these contracts offer flexibility to employers and opportunities to employees. However, it's crucial to understand the legal framework governing these contracts to ensure compliance and protect the rights of all parties involved.
First WRC Award in Right to Request Remote Working claim
By Tara Daly June 12, 2025
The Workplace Relations Commission (WRC) has issued its first award under the Work Life Balance and Miscellaneous Provisions Act 2023, and it's a timely reminder for employers across Ireland. Although multiple claims had previously been submitted to the WRC under this legislation, all were unsuccessful prior to this case.
How to Calculate Statutory Annual Leave in Ireland
By Tara Daly June 12, 2025
Annual leave entitlements are a fundamental part of every employee’s contract. But when it comes to calculating statutory annual leave, particularly for employees with variable hours, many employers are unsure of the rules
By Tara Daly May 13, 2025
What does this mean for Irish and UK Employers
By Tara Daly May 13, 2025
What Employers Need to Know
By Tara Daly May 13, 2025
A Temporary Relief for SMEs or Just Delayed Pressure?
Auto-Enrolment Delayed
By Tara Daly May 13, 2025
Auto-Enrolment Delayed. Why is there delays? when?
By Tara Daly May 1, 2025
At MSS The HR People, we often get asked, “What exactly is HR advice?” It’s a great question — and one that cuts right to the heart of what we do every day for our clients. What Is HR Advice? HR advice is professional guidance provided to employers and managers on how to manage people in the workplace. Whether you run a small business with a handful of employees or are a scaling SME with growing staffing needs, the right HR support can help you stay compliant, avoid costly mistakes, and build a high-performing team.  In this blog, we’ll break down what HR employer advice actually is, how to know when you need it, and what your options are for getting the right professional HR support - without hiring a full-time HR manager. It spans everything from recruitment and onboarding to performance management, employee relations, and employment law compliance. Good HR advice helps businesses stay compliant, make informed decisions, and avoid costly pitfalls. But more than that — great HR advice is practical, proactive, and tailored to your business needs. Types of HR Advice We Offer At MSS The HR People, we support clients with a broad range of HR issues. These include: Employee Relations – Managing grievances, disciplinaries, investigations, or conflict resolution. Performance & Conduct – Supporting managers with underperformance, absenteeism, or behavioural issues. Contracts & Policies – Drafting or reviewing contracts, handbooks, and HR policies to ensure legal compliance. HR Compliance – Advising on employment law updates and how to implement them in your business. Probation & Onboarding – Helping clients manage probation periods effectively and set new hires up for success. Redundancy & Restructuring – Providing guidance through challenging workforce changes. Everyday Queries – Whether it’s questions on annual leave entitlements, sick pay, or flexible working, no query is too small. What Do Clients Typically Contact Us For? Clients contact us when they: Need a second opinion or a clear interpretation of employment legislation. Are unsure how to approach a difficult conversation or situation. Want to ensure their HR practices are fair, consistent, and legally compliant. Are looking to reduce HR risk while improving employee engagement and culture. Have already worked out an approach and just want quick validation or a sounding board before taking action. Simply want quick, professional HR advice on tap. Why Is HR Advice Important? Irish employment legislation is constantly evolving - with updates to minimum wage, statutory sick pay entitlements, and gender pay gap reporting introduced so far this year – and it’s only April! Business owners are expected to keep up with these changes, ensure compliance, and handle any workplace issues appropriately. Getting it wrong can be costly. A poorly handled disciplinary, a missing contract, or a misstep during a redundancy process can result in: WRC (Workplace Relations Commission) complaints Penalties or fines Damaged reputation Low staff morale or high turnover HR advice ensures you don’t fall into these traps. Instead, it gives you the confidence to act decisively and fairly - whether you’re growing your team or managing a tough issue. How Do I Know If I Need HR Advice? Here are some of the most common signs that your business needs HR support: 1. You're Hiring or Growing Your Team Bringing on employees is a big step for any business. It’s important to have compliant employment contracts, solid onboarding processes, and clear expectations. If you're unsure where to start or want to do things right from the get-go, expert HR advice can set you up for success. 2. You Don’t Have Written HR Policies All employers should have clear policies in place such as an employee handbook, disciplinary procedure, grievance policy, absence management, and remote working guidelines. If you don’t have these in writing (or haven’t updated them in years), it’s time to get professional help. 3. You're Dealing with a Staff Issue If you're facing challenges like persistent absenteeism, underperformance, or conflict between employees, it can be difficult to know how to handle it correctly. HR consultants can guide you through fair processes, help you document everything, and reduce your legal risk. 4. You Want to Avoid a WRC Complaint If you’ve had a close call - or just want to make sure you're doing everything by the book - getting HR advice is a proactive way to protect your business and reduce the chance of ending up in front of the WRC. Not all HR support is created equal however, so it’s important to work with a provider who delivers straightforward, practical advice tailored to your business size and sector. The best HR Advice providers take a proactive (not just reactive) approach, providing practical tools like compliant templates, letters, and policies, along with training or coaching for managers when needed. Depending on your needs and budget, there are several ways to access HR support. One-off HR advice is ideal if you're dealing with a specific issue, such as a staff dispute or restructure, and need expert guidance. An HR health check or audit is a smart starting point if you're unsure about compliance, offering a full review of your contracts, policies, and procedures with a clear action plan. For ongoing peace of mind, many businesses opt for outsourced HR support, giving them access to expert advice without the cost of hiring in-house. Retained HR consultancy offers regular, tailored support for businesses that are growing or managing complex employee relations on an ongoing basis. How to Get Started Start by assessing your current situation. Do you need help with a one-off issue, like a disciplinary meeting? Or are you looking for ongoing HR support for your business? Make a list of your concerns: lack of policies, recruitment headaches, managing performance, or dealing with absence or sick leave. The more clarity you have, the more focused your consultant’s advice can be. Ready to Take the Headache Out of HR? As we have identified, getting HR advice isn’t just about avoiding fines - it’s about creating a better place to work, retaining great talent, and freeing you up to focus on growing your business. At MSS – The HR People, we offer expert HR support for employers that’s clear, compliant, and commercial. From one-off consultations to fully outsourced solutions, we’re here to help you get HR right. Ready to get started or just want to have a quick chat about your HR challenges? Contact us today to arrange a free discovery call. Whether you’re an SME owner, a manager navigating a tricky staff issue, or an organisation looking to strengthen your HR framework, MSS The HR People is here to help.
More Posts