Changes to Probationary Periods:  Employers Beware and Prepare

PUBLISHED: 19th January 2023

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 came into force in Ireland on 16 December 2022. 

These Regulations introduce significant changes to the law on contracts of employment and working conditions for employees, but the new rules in relation to the length of probationary periods in contracts of employment are of particular importance.

The changes in relation to probationary periods are outlined below.

New Rules on Probationary Periods

In the private sector, the probationary periods of employees should not exceed 6 months save in exceptional circumstances.  Where the probationary period is, on an exceptional basis, to be longer than six months, it cannot exceed 12 months and must “be in the interest of the employee”. There is currently no further guidance on what is envisaged as being in the interest of the employee.

If an employee avails of certain categories of protected leave during the probationary period (e.g., maternity, adoptive, carer’s, paternity, parental, parent’s or sick leave), then the probationary period shall be extended by the employer for the duration of the employee’s absence.

In relation to fixed-term contracts, and notwithstanding the above, the length of a probationary period in a fixed-term contract shall be proportionate to the expected duration of the fixed-term contract and the nature of the work.  It is also stipulated that where a fixed-term contract is renewed for the same tasks and functions, the renewed fixed-term contract should not contain a new probationary period.

If an employee was subject to a probationary period which exceeded 6 months on the date the Regulations came into force (16 December 2022), and if at least 6 months of probation has been completed by the employee, then the probationary period shall expire on the earlier of (i) the date the probationary period was due to expire and (ii) 01 February 2023.   We therefore recommend that employers review their current contracts of employment to check if any employees have contracts with probationary periods for longer than 6 months.  This includes circumstances where any initial probationary period has been extended, as these periods may all expire on 1 February 2023 or earlier.  Immediate consideration of the status of such employees is advised.

Additional Provisions

Employers should also be aware that the Regulations have also introduced changes in respect of the following matters:

1. Additional minimum employment terms to be provided in writing to employees within 5 days of commencing work;
2. The minimum period within which full terms of employment must be provided to an employee has been reduced to one month from commencing employment;
3. Specific rules on information to be provided to employees where working patterns are unpredictable;
4. Employees can make a request for more predictable and secure working conditions, where available, and are entitled to receive a reasoned written reply from the employer;
5. Where an employer is required by law or collective agreement to provide training to an employee, the training must be provided to employees cost free and the time spent training will count as working time; and
6. Restrictions on exclusive employment clauses.  

An update dealing with these provisions will issue shortly.  

Effective Use of Probation

Probationary periods are a very useful tool for both employers and employees to trial the working relationship and ensure that the parties are a good fit and work well together. A well drafted contract will normally provide for a short notice period during the probationary period (customarily one week). Employees will not usually have the benefit of the Unfair Dismissals Acts until they have achieved 12 months’ continuous service and so the termination of an employee during the probationary period, and in accordance with the terms of the contract, can be a lower risk and efficient way to terminate an underperforming employee.  A probationary period does not, however, give an employer carte blanche to terminate employees  and, as always, careful consideration should be given where there are allegations of misconduct, protected disclosures or discrimination, etc., and specific legal advice should be sought.

The introduction of a maximum probationary period will have a significant impact on how employers address probationary periods in their contracts of employment and in practice. We would advise employers to review their contracts and probationary practices in light of this new legislation.

Should you require any advice in relation to the above changes, please do not hesitate to contact Jennifer O’Neill joneill@lkshields.ie or Elizabeth Mara emara@lkshields.ie or any member of our Employment, Pensions and Benefits team.