Clarity Awaited on New Rules on Probation

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by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher LLP.

The EU (Transparent and Predictable Working Conditions) Regulations 2022 were commenced in December 2022, somewhat under the radar, transposing an EU Directive into Irish law.

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The Regulations introduced a somewhat mixed bag of changes to employment law in Ireland and, particularly to terms and conditions of employment. One such change that has prompted debate in some quarters is the modification of the law on probation. The Regulations state that the probationary period of a private sector employee shall not exceed 6 months and the probationary period of a public servant shall not exceed 12 months.

While there is some scope to provide for an increased probationary period for private sector employees, this longer period shall not exceed 12 months and can only be imposed if it would be “in the interest of the employee“. Furthermore, the Regulations stipulate that this longer probationary period may only be imposed “on an exceptional basis“.

It is arguable that this longer period would usually only be imposed by extending an initial probationary period. It is not clear whether a longer probationary period can be imposed from the outset of the contract of employment or whether it should only take the form of an extension. What is clear is that this longer period can only be imposed on an exceptional basis and where it would be in the interest of the employee.

What constitutes an exceptional basis (which is different to the test of “exceptional circumstances” that some readers may be familiar with) or what is in the interest of the employee is yet to be fully determined but is likely to be clarified by WRC and other case law in due course. What position the WRC, Labour Court or the civil courts (if matters ever get that far) take on this matter will be crucial in determining the impact of this change. For example, should an employer take the view that they do not believe an employee has passed probation, but would be willing to give the matter more time to form a clearer view, would seem to be almost certainly in the interest of the employee. However, should this be or be likely to become a regular practice of the employer, then the exceptional basis requirement would not be satisfied.

Clarity on these issues is eagerly awaited. In the interim, employers should ensure to review their policy and practice on probation to ensure they are compliant with the 2022 Regulations.

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.