Unfair dismissal during probation

What is an unfair dismissal while on probation? Can an employee be dismissed while on probation? Can I bring a claim for unfair dismissal? What happens if you are unfairly dismissed on probation?

There is a common misconception among both employers and employees that an employee can be dismissed at any time during a probation period and they will not be eligible to bring a claim for unfair dismissal.

Similarly, it is also commonly believed that if an employee is dismissed after their probation period then, subject to meeting all other relevant eligibility criteria, they are entitled to bring a claim for unfair dismissal. Many employers believe, wrongly, that they can easily dismiss an employee once they are still within the probationary period. Even employees on probation are entitled to natural justice and fundamentally fair procedures.

This is a view shared by many small business owners who may not have human resources personnel. It’s also good practice to allow for an appeal, as a dismissal will often be found unfair if there was no appeal. Dismissal because of sickness absence If a new employee is constantly taking time off sick during their probationary period , it’s understandable that you might want to dismiss them.

But when a dismissal in the probationary period is due to sickness absence, you need to take extra precautions to make sure the dismissal is fair.

Dismissal on probation is difficult for a normal unfair dismissal claim because you would not have accrued the two years necessary for a claim in the employment tribunal. The probation period could only be extended or the employee can only be dismissed after he has been invited (or his trade union or a fellow employee representative) to make representations and the employer has properly considered them. Being on probation doesn’t give you any specific legal rights. You can be dismissed with week’s notice while you’re on probation - or longer if your contract says you’re entitled to more notice. Check your contract to see what it says about your probation period and when you can be dismissed.

It usually means the same as being sacked or fired. If they do not, an employee could make a claim for unfair dismissal , even if the reason for dismissing them was valid. Employers should keep this in mind when considering extending an employee’s probation period.

In order to be eligible to make an unfair dismissal claim, an employee must have first completed the minimum period of employment with his or her employer. Generally, this means that you can terminate the employee during the probationary period without leaving yourself open to an unfair dismissal claim. As the probationary period is usually insufficient to get the protection of the Unfair Dismissals Acts, the main concerns for an employer dismissing during this period is either a claim to the Equality Tribunal under the Employment Equality Acts or to the Courts for wrongful dismissal. Dismissal during probationary period right of appeal While an employee can’t claim unfair dismissalduring the first year of their employment, they can claim for wrongful dismissal.

This could occur if you end their contract without going through a fair dismissal process as per their contract of employment. It is the fact that you would usually not have been working with your employer for two years that impacts on your right to sue for unfair dismissal , and not the fact that you. Employees on probation may not be dismissed at the end of the probation period for poor performance, unless the employee was counselled during the probation period and an opportunity was given to the employee to defend himself against the allegations of poor performance before a dismissal is decided upon.

When you get a new job, you might have to work a probationary period. This usually lasts 3-months, and allows your employer time to confirm that you are the right person for the job. During this perio your employer can sack you if you commit gross misconduct such as frau theft or violence.

A recent Labour Court recommendation serves as a useful reminder to employers that they do not enjoy a carte blanche when it comes to dismissing employees on probation. FACT: While under the FW Act’s predecessor, the Workplace Relations Act, employees serving a reasonable period of probation were exempt from unfair dismissal laws, that exemption is not provided in the FW Act. The length of the probationary period is always within the discretion of the employer.

Most employers use a 3-month period of probation to see if the employee works well within the companies structure and with the other employees. Including the risk of adverse action if a reason is not given and documented. An employee who hasn’t worked for the statutory minimum period of employment (generally six months) cannot bring an unfair dismissal claim onto an organisation. While, in general, this will apply for unfair dismissal claims, as the following case demonstrates, employers may be exposed to other claims, for. It is worth remembering, however, whilst the employee during the probation period will not have the required length of service to bring an unfair dismissal claim, there are other claims that they could bring which have no qualifying perio i. You should also avoid any reason that would give an employee any automatic unfair dismissal rights.

A recent award of €30for an employee dismissed during probation shows the risks associated with dealing with performance issues during probation. Although an employee on probation will not have the required one year’s service to claim for Unfair Dismissals, the employee may take a claim to the Rights Commissioner under the Industrial Relations Act. For employers with greater than employees, the time frame prohibiting a claim of unfair dismissal is months. Employees, whose employment is terminated in the probationary perio will not be able to make a claim for unfair dismissal because they will not have worked the ‘minimum employment period’, which is a threshold requirement to access the unfair dismissal jurisdiction of the FW Act (for small businesses the minimum employment period is twelve months and for all other businesses it is six months).

However, while that is technically the case, the reality is that regardless of whether a contract of employment contains a probationary perio an employee cannot bring an unfair dismissal claim if they are dismisse unless they have been employed for a minimum of six months (or one year in the case of a person employed by a ‘small business employer’, defined as an employer who employs less than staff).