Understanding Employee Probation

What is a Probationary Period?
Probation is a period of time at the beginning of the employment, during which the employer assesses if the employee is suitable to take up a permanent position with the company. It is normal procedure to include a probationary clause in the Contract of Employment.

How long can a probationary period last?
There is no compulsory time limit regarding the duration of probationary periods. However, many employment contracts include 3 or 6 month probation periods and allow the employer to extend this period, if the employer sees fit to do so. It is best practice not to run a probationary period of longer than 11 months.

Does a Contract of employment have to include a Probation Period?
No, although it is advisable that an employer should include this; the absence of a probationary clause could make it more difficult for an employer to safely execute a dismissal during the early stages of employment.

Can probationary periods be extended?
As mentioned above an employer can choose to extend the probationary period and this option is a feature of most Contracts of Employment. Again, there is no specified time limit but probationary periods should not extend beyond 11 months from commencement of employment. The main reason for this is that employees with a minimum of 12 months continuous service are protected by Unfair Dismissal legislation and entitled to fair procedures prior to dismissal. This right to fair procedure does not extend to employees on probation, where the dismissal relates to poor performance.

Are employees on probation not protected by Unfair Dismissal legislation?
In general terms, employees with less than 12 months continuous service are not protected by such legislation. However there are a number of areas where this service requirement does not apply; for instance if the reason for dismissal is connected to any of the nine grounds covered under Equality Legislation (Race, Gender, Age etc), because the employee is a Union Member or has made a Protected Disclosure, as defined under the relevant legislation. Any such dismissal, even where the employee has short service, could be found to be automatically unfair. In these circumstances, an employee on probation could successfully bring a claim for unfair/discriminatory dismissal.