We are frequently asked by employers whether it is possible to terminate an employee’s employment during their probationary period without any legal risk. Whilst in general an employee must have 12 month’s continuous service to bring a claim for unfair dismissal under the Unfair Dismissal Act 1977 (as amended), there are exceptions to this. Whilst many dismissals take place during the first six months of employment, many employers feel they are “home and dry” however it should also be remembered that the Employment Equality Acts 1998 (as amended) do not require employees to have a particular length of service to bring a claim and an employee could in fact be protected if they can show that they have been dismissed on one of the nine prohibited discriminatory grounds or have suffered some form of discrimination at work.
The recent Workplace Relations Commission decision of An Engineer v An Electricity Provider ADJ-00031159 dealt with the case of an employee who was dismissed on the grounds of failed probation, some seven months after commencing employment. Due to unforseen circumstances, the project the complainant was working on when she commenced employment was suspended and she was re-assigned to a new assignment. Unfortunately problems arose and the employee was placed on a performance improvement plan which she ultimately failed.
The respondent company argued that they had followed proper and fair procedure and that termination was reasonable on the grounds that the employee had failed to satisfactorily pass her probationary period.
Decision
The Workplace Relations Commission found ultimately that the dismissal of the worker was not unfair. The Adjudicator referred to the case of Donal O’Donovan v Over-C Technology Ltd and Over-C Limited [2021] IECA 37, which similarly involved a probationary dismissal on the grounds of poor performance. In that case the Court of appeal found that
“During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something they wish to continue”.
Employment Law Case Tip
An employer should always follow proper and fair procedure when effecting any dismissal, even during a probationary period where an employee may not have 12 months continuous service to bring a claim for unfair dismissal.
