probation period in work

swimming in a sea

Hello,

I've seen online that you have hardly any rights if you are let go from you job before 12 months. Does that still stand if you have passed your 6 month probation and have been given a letter to say you are now permanent?

Basically wondering if no matter what your employer says after 6 months you're effectively on a 12 months probation?

Mr. Incognito

Prohbation is contractual

The 12 months is the period of time for most employment law protections pursuant to Statute to kick in.

Statutory Redundancy is 2 years.

GavMan

swimming in a sea wrote: »

Hello,

I've seen online that you have hardly any rights if you are let go from you job before 12 months. Does that still stand if you have passed your 6 month probation and have been given a letter to say you are now permanent?

Basically wondering if no matter what your employer says after 6 months you're effectively on a 12 months probation?

If your contract says 6 months then it is 6 months. Unless they extend it for some reason. Standard boiler plate contracts will contain a provision to do so.

However, if it is X amount of months and that passes, your employer should confirm to you in writing if have passed this period or not and if not, why not. Once you pass, you have the full protection of the law

afatbollix

Not sure about your contract but for mine, it was a 1 week notice period during probation.

Then after that, it was 1 month. Which they could also give up to 2 years.

After 2 years they would have to do down the formal dismissal route to fire you.

alias no.9

In a scenario where a contract says 6 months probation which may be extended to a maximum of 9 months, is it a reasonable assumption that once the employment is continued beyond 9 months that probation is completed regardless of whether a formal signoff has taken place?

steamsey

I think that's a very reasonable assumption. Some places will provide letters confirming probation has been cleared. Others might never mention it. A lot of the contracts I've seen state the probationary period but not mention that you need active confirmation from the company to say it has been passed. They would however need to inform you in the case where it is being extended from say 6 to 9 months. This would normally involve a letter.

swimming in a sea

Thanks for the reply's,

So for me they gave me a signed letter to say I'd passed my probation period after 6 months but I've another 5 months before I'm a year there. So i gather from what you are saying is that I now have the full protection of the employment law because i was told I passed probation.

ludalyni

swimming in a sea wrote: »

So for me they gave me a signed letter to say I'd passed my probation period after 6 months but I've another 5 months before I'm a year there. So i gather from what you are saying is that I now have the full protection of the employment law because i was told I passed probation.

No, you don't. You have the protection of some employment laws. For example, working time legislation, payment of wages legislation, national minimum wage legislation, employment equality legislation. These are all protections you get from day one of employment.

You do not get the full protection of unfair dismissals legislation until you have one year's service. This means that your employer can dismiss you during the first year with a relatively low level of risk on their part (regardless of the length of your probationary period). If you are dismissed in the first year, the only real options open to you are an industrial relations complaint to the WRC (there is no obligation on your employer to engage in that process and the recommendations are not binding on them in any event so not exactly helpful for employees), a discriminatory complaint to the WRC (if the reason for dismissal was because of some protected characteristic you have), or an injunction / civil case on the basis that your constitutional right to natural justice and fair procedure was breached (assuming no process followed in effecting the dismissa ). Injunctions / civil cases are v. expensive and usually only taken by very high earners / senior executives.

There are other rights that you only get the benefit of after a certain period of service. For example, parental leave = in general, 1 year's service, statutory redundancy payment = 2 years' service.

Peregrinus

There's also the possiblity of a wrongful dismissal action the court (not the WRC) arguing that, although your dismissal is not in breach of the Unfair Dismissals legislation, it is in breach of your contract. But that's as expensive and uncertain as any other civil case in the courts.

joeguevara

Probation essentially means nothing when it comes to unfair dismissal. It might give you added benefits of higher pay, more holidays or other benefits. But until you hit 12 months you can be let go without reason.

This does not apply if they dismissed you under any of the 9 equality act grounds such as gender, family status, sexuality, traveling community etc. but anythin*. Else is fair game,

ludalyni

Peregrinus wrote: »

There's also the possiblity of a wrongful dismissal action the court (not the WRC) arguing that, although your dismissal is not in breach of the Unfair Dismissals legislation, it is in breach of your contract. But that's as expensive and uncertain as any other civil case in the courts.

You're right but, as you say, a wrongful dismissal claim is essentially a breach of contract claim. The majority of employment contracts can be terminated on notice. So long as the employer provides the employee with that notice or pays in lieu of that notice (and assuming no other contractual terms are breached in effecting the termination), there would be no basis for the employee to bring such a claim.

joeguevara

ludalyni wrote: »

You're right but, as you say, a wrongful dismissal claim is essentially a breach of contract claim. The majority of employment contracts can be terminated on notice. So long as the employer provides the employee with that notice or pays in lieu of that notice (and assuming no other contractual terms are breached in effecting the termination), there would be no basis for the employee to bring such a claim.

Could you expand further on this in the scenario that an employee has been employed for over 12 months. I don’t think you can terminate by giving notice unless there are grounds for dismissal and due process is followed. Like, if someone is there for 4 years and working away grand, you can’t just say sorry but I’ll pay you a month. Time to go. If that was the case then there would never be a case brought for unfair dismissal.

Or have I misunderstood?

Peregrinus

Before the statutory employment rights that give people access to unfair dismissal proceedings, if you were fired and you weren't happy about it your primary recourse was a civil action for what was termed "wrongful dismissal". They are rarely taken now because the unfair dismissal action is much more accessible, much cheaper and much simpler, but they are an option if you aren't within the unfair dismissal regime or if - a long shot, this one - you hope to recover more compensation than can be awarded under the unfair dismissal rules, where the award of compensation is capped at two years' remuneration.

A wrongful dismissal action is basically an action for breach of contract in which you argue that, even though the employment contract provides for a termination procedure and it was followed, the contract has to be read as a whole and invoking the procedure in this instance was a breach of some other express or implied term of the contract. It's an implied term of every contract of employment that the employer will not conduct himself in a way likely to damage the relationship of trust and confidence that should subsist between employers and employees, so if the circumstances of your dismissal suggest that the employer is behaving monstrously unreasonably you have at least a shot at a wrongful dismissal action. For example:

- You are given a written instruction by your manager, and you follow it. Following it causes problems, customer dissatisfaction, complaints, etc. You are fired rather than the manager being disciplined because the manager is well in with the boss, or simply because disciplining the manager would be very disruptive to the business.

- You have a very camp affect and repeatedly attract homophobic bullying, which you complain about. The employer fires you rather than addressing the bullying, because he thinks the problem is your campness.

- You are accused of serious misconduct and fired without being given an opportunity to challenge or refute the accusation.

Nowadays, in 99 cases out of 100, you'd have remedies available to you in the unfair dismissal regime, or the equal treatment regime, or whatever, and these will be cheaper, quicker, etc than a wrongful dismissal action in the courts. But in the past, or in the rare modern case that falls outside those statutory regimes, the wrongful dismissal action remains available.

ludalyni

joeguevara wrote: »

Could you expand further on this in the scenario that an employee has been employed for over 12 months. I don’t think you can terminate by giving notice unless there are grounds for dismissal and due process is followed. Like, if someone is there for 4 years and working away grand, you can’t just say sorry but I’ll pay you a month. Time to go. If that was the case then there would never be a case brought for unfair dismissal.

Or have I misunderstood?

No, you're right but in that scenario the employee would bring a complaint to the WRC under the unfair dismissals legislation.

Employees have multi overlapping layers of protection, some with more teeth than others.

Firstly, they are protected by the constitution. So, if their constitutional right to natural justice and fair procedure is breached (i.e. no process followed in effecting the dismissal), they could bring a civil claim (i.e. to the ordinary courts). These claims are expensive to bring and awards tend to be limited to the employees' loss - which is generally the notice period - so are rare in practice.

Employees also have contractual rights under their contracts of employment. Generally these rights include things like the employee's salary level, certain benefits, a certain amount of notice on termination etc. If an employee feels that an employer has breached any of these rights, s/he can bring a claim to the civil courts - again, expensive and awards generally limited to the employee's loss only (so, for example, salary not paid, notice not given etc).

By far and away the best protection employees have is under legislation. This is totally separate to the above two protections. In a dismissal scenario, once the employee has 1 year's service, the legislation specifically says that the employer must have a good reason for terminating their employment and follow a fair process in effecting that termination. Unless the employer satisfies both elements of that test (which is difficult to do in practice) the dismissal will be deemed to be unfair and the employee could be re-instated, re-engaged or awarded compensation of up to 2 year's remuneration by the WRC. It is free to bring complaints to the WRC and both sides are responsible for their own costs, whatever the outcome, so this is the best option for employees (assuming they satisfy the service requirement to bring a claim).

Taking your scenario, the employee in that case wouldn't have a basis for a breach of contract claim (or if they did, their award would likely be low because they were given notice) but they would have a good basis for an unfair dismissal case (because the employer failed both elements of the test set down by legislation).

joeguevara

ludalyni wrote: »

No, you're right but in that scenario the employee would bring a complaint to the WRC under the unfair dismissals legislation.

Employees have multi overlapping layers of protection, some with more teeth than others.

Firstly, they are protected by the constitution. So, if their constitutional right to natural justice and fair procedure is breached (i.e. no process followed in effecting the dismissal), they could bring a civil claim (i.e. to the ordinary courts). These claims are expensive to bring and awards tend to be limited to the employees' loss - which is generally the notice period - so are rare in practice.

Employees also have contractual rights under their contracts of employment. Generally these rights include things like the employee's salary level, certain benefits, a certain amount of notice on termination etc. If an employee feels that an employer has breached any of these rights, s/he can bring a claim to the civil courts - again, expensive and awards generally limited to the employee's loss only (so, for example, salary not paid, notice not given etc).

By far and away the best protection employees have is under legislation. This is totally separate to the above two protections. In a dismissal scenario, once the employee has 1 year's service, the legislation specifically says that the employer must have a good reason for terminating their employment and follow a fair process in effecting that termination. Unless the employer satisfies both elements of that test (which is difficult to do in practice) the dismissal will be deemed to be unfair and the employee could be re-instated, re-engaged or awarded compensation of up to 2 year's remuneration by the WRC. It is free to bring complaints to the WRC and both sides are responsible for their own costs, whatever the outcome, so this is the best option for employees (assuming they satisfy the service requirement to bring a claim).

Taking your scenario, the employee in that case wouldn't have a basis for a breach of contract claim (or if they did, their award would likely be low because they were given notice) but they would have a good basis for an unfair dismissal case (because the employer failed both elements of the test set down by legislation).

I agree with everything you say. I was more interested in your point about most employment contracts can be terminated if appropriate notice is given. I don’t think this is correct if the employee has more than 12 months continuous service. I5 can only be terminated by mutual consen5 in that case or if employee hands in notice. I don’t think employer can let someone go if they are performing satisfactorily unless it’s a redundancy situation which needs 104 weeks.

Sorry if I’m bringing ot.

ludalyni

joeguevara wrote: »

I agree with everything you say. I was more interested in your point about most employment contracts can be terminated if appropriate notice is given. I don’t think this is correct if the employee has more than 12 months continuous service. I5 can only be terminated by mutual consen5 in that case or if employee hands in notice. I don’t think employer can let someone go if they are performing satisfactorily unless it’s a redundancy situation which needs 104 weeks.

Sorry if I’m bringing ot.

Contractually they can but the employee would have a slam dunk unfair dismissal case. In practice, therefore, the employer won't do it because the risk of a successful UD claim is too high.

The contract and the legislation are different beasts. You might be allowed to do something under the contract (eg terminate on notice) but at the same time be restricted from doing it under the legislation (eg terminating unless good reason for dismissal and fair process followed).

Before the employee reaches one year's service, the employer really only has to consider the contract and employment equality legislation when dismissing an employee. After that point, the employer has to consider both of those things AND the unfair dismissal legislation.