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
WRC Finds No Family Status Discrimination in Roster Change Request
By Amanda Scully September 15, 2026
WRC decision highlights the importance of understanding the scope of family status and engaging with employee requests for changes to working arrangements.
Private Sector Pay Increases: The 3% to 4% Trend in 2026
By Amanda Scully September 15, 2026
Private sector pay increases are becoming more concentrated in the 3% to 4% range in 2026, despite continued economic uncertainty
Performance Management Process Done Right
By Amanda Scully September 15, 2026
Performance Management, when managed effectively, annual appraisals can be a valuable part of an company's wider performance management process
Government Supports for Employers: Funding Available When Recruiting
By Amanda Scully September 15, 2026
Employers recruiting in Ireland may be able to access a range of Government supports and financial incentives
WRC Finds Pregnancy Discrimination Following Probationary Review
By Amanda Scully August 18, 2026
A recent WRC decision highlights the importance of fair, well documented probation procedures, particularly where pregnancy or pregnancy-related illness is involved.
Record €323,000 WRC Award Highlights the Serious Risks of Whistleblower Penalisation
By Amanda Scully August 18, 2026
WRC decision has highlighted the significant consequences for employers where an employee is found to have been penalised after making protected disclosures.
Pregnancy Loss Leave Bill – Proposed New Statutory Leave for Employees
By Amanda Scully August 18, 2026
Proposed new statutory entitlement to paid leave for employees who experience pregnancy loss before 23 weeks' gestation
Can Employees Use ChatGPT at Work? What Irish Employers Should Consider
By Amanda Scully August 18, 2026
Do employees understand how AI can be used safely and appropriately in the workplace
New Retirement Age Legislation Takes Effect on 29 June 2026
By Amy Vickers July 1, 2026
The Employment (Contractual Retirement Ages) Act 2025 introduces new obligations for employers who operate a contractual retirement age below State Pension Age .
Labour Court Issues First Decision on Right to Request Remote Working
By Amanda Scully June 30, 2026
A landmark Labour Court decision reinforces that the right to request remote working, highlighting the importance of employers following the correct process.