Dismissal during probationary period

A High Court Injunction obtained last year, by an employee in relation to his dismissal during the Probationary Period, was much talked about and no doubt for many employers a cause of concern.

Prior to this, employers felt a decision to dismiss during probation was a reasonably safe and that the need for fair procedures was not a requirement, as it might where an employee has successfully completed a Probationary Period. The High Court decision seemed to turn this on its head.

However, earlier this year the Court of Appeal overturned. That decision which would have been
welcome news for employers; who understandably see the Probation as a period of evaluation of
the employee and to consider if the employment relationship is one they wish to continue.

The Court of Appeal would seem to agree; it held that the High Court had not sufficiently considered the
critical fact that the termination had taken place during the Probationary Period. The Court commented that during the Probationary Period, an employer must be free, for any or no reason, to terminate the Contract of Employment, without the need to adhere to fair procedures.

This applies during and beyond the probationary Period. However, it is important to note that, where the reasons for dismissal include allegations of Misconduct (as opposed to Performance); then fair procedures must be followed. This is a significant ruling and brings clarity to the relevant Law.
However the decision does not negate employee rights in relation to Unfair Dismissal, Discrimination and does not address the relationship Unfair Dismissals legislation.

Points to note, if intending to terminate employment during probation:
 Ensure the Contract of Employment contains a robust clause allowing for dismissal during probation.
 Ensure any allegations are not related to misconduct.
 Give due notice of the dismissal.

Read the full decision here:
 Donal O’Donovan v Over-C Technology Limited and Over-C Limited