1. Introduction
Dismissal during a probationary period sits at the intersection of the Unfair Dismissals Acts 1977 to 2015 (which generally require one year’s service before protection applies) and the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (which transpose EU Directive 2019/1152 and impose new restrictions on probationary periods).
This article sets out the legal framework, the new six-month default cap on probation, the procedural protections that apply notwithstanding the absence of unfair dismissal protection, and the practical considerations that arise where an employer is considering dismissal during probation.
2. Legislation and Case Law
The Unfair Dismissals Act 1977 (as amended) requires, by Section 2(1), one year’s continuous service before the unfair dismissal protection applies. An employee dismissed during a probationary period of less than one year is therefore generally outside the protection of the Acts.
The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022), transposing EU Directive 2019/1152, introduced new rules on probationary periods. Regulation 6 provides that probation may not, in general, exceed six months. Probation may be extended on an exceptional basis where the extension is in the interest of the employee or where it is justified by the nature of the employment.
The Regulations do not displace the general one-year service requirement under the Unfair Dismissals Acts. The Regulations create a separate statutory framework with its own enforcement mechanism.
Notwithstanding the absence of statutory unfair dismissal protection for most probationary employees, a probationary employee may have rights under other statutes including the Payment of Wages Act 1991, the Minimum Notice and Terms of Employment Act 1973, the Employment Equality Acts 1998 to 2021, and the Industrial Relations Act 1969 (Section 20).
3. Decision
The general position is that an employer may terminate the employment of a probationary employee, with notice (or pay in lieu of notice) consistent with the contract, without exposure to an unfair dismissal complaint.
Where the dismissal is alleged to fall within one of the protected grounds (pregnancy, trade union activity, protected disclosure, discriminatory ground), the position is different. The protections under those statutes apply regardless of service.
The procedural conduct of the dismissal also matters. Where the contract provides for a particular procedure to apply during probation (typically a probation review process with the right of representation and a right of appeal), failure to follow that procedure may give rise to a breach of contract claim.
An employer who has imposed a probationary period of more than six months without a basis under Regulation 6, and who then dismisses during the extended probation, may be exposed to a complaint under the Regulations. The Adjudication Officer’s recent decision in Doyle v Astronomy Ireland (ADJ-00047367) is one of the early authorities on the operation of the Regulations.
4. Takeaway
Dismissal during probation is, in general, outside the protection of the Unfair Dismissals Acts. The protection of probationary employees lies in other statutes and in the procedural and contractual protections that apply during the probationary period.
For employers, the practical advice is to use the probationary period actively. Where performance or conduct concerns arise, they should be raised in real time, in writing, with reasonable opportunity for the employee to address them.
Employers should also be alert to the six-month default cap. A standard contractual probation of six months will be within the Regulations. Where a longer period is sought, the employer must be able to justify the extension.
For employees, the practical advice is to engage actively during probation, to address concerns raised, and to keep records of performance feedback received.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
