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An important piece of employment legislation came into force in December when the European Union (Transparent and Predictable Working Conditions) Regulations 2022 amended a number of existing elements of employment law.

“These amendments have brought a renewed focus on the importance of probation clauses in contracts of employment,” says Fiona Higgins, head of the Ibec Knowledge Centre, which provides tailored employment advice and information as well as online resources and tools for general HR support to members.

What are these changes?

The new regulations limit the length of the probationary period to a maximum of six months for private-sector employees and 12 months for public-sector employees. An organisation’s right to extend probation is permitted only on an “exceptional basis” in the interests of the employee. “Employers should seek advice when considering extensions to probation periods,” Higgins advises.

What does ‘probation period’ mean?

A probation period is the initial time when a new employee learns their way around a new job. It’s not just a time for employees to learn the ropes. It’s a time period where an employee may be dismissed with little or no notice if they’re found to be unsuitable for the role.

You should generally ease them in, letting them get used to your work methods. When the period ends, you’ll be able to establish whether to keep them permanently or let them go. Probation periods aren’t only used for new starters. Sometimes they’re used for existing employees, for example for those who are newly promoted or going through performance reviews.

As of December 2022, the length of the probation period must be 6 months, however in certain circumstances, the probation period may be extended to a maximum of 12 months.

The probation can be extended where it in your interests or where you have been on extended leave, such as sick leave, during your probation. It can also be extended where it is justified by the nature of the work, for example public service employment.

If you are dismissed while you are on probation or undergoing training, the Unfair Dismissals Acts 1997–2015 will not apply, once:

• The contract of employment is in writing and
• The probation or training lasts for one year or less and is specified in the contract

However, the Unfair Dismissals Acts will apply if you are dismissed due to:

• Trade union membership or activity
• Pregnancy-related matters
• Entitlements under maternity protection, parental leave, adoptive leave, parent’s leave, paternity leave, force majeure leave or carer’s leave legislation

If you are dismissed during probation

If you are being dismissed during a probation period due to misconduct, you have a right to ‘natural justice’, which means due process and fair procedures. However, this right does not generally apply to a dismissal for poor performance, particularly where your contract expressly allows for dismissal for poor performance during probation.

You may be able to take a claim for ‘wrongful dismissal’ during your probation period if you have less than 12 months service. Wrongful dismissal happens when an employer does not meet an implied or an express term in your contract of employment, or does not give you adequate notice. You can sue the employer for breach of your contract in the civil courts.

Changes to your contract of employment

If there is a change in employment law (such as an increase to Parent’s leave), this automatically changes the terms in your contract of employment.

Any other changes to your contract (changes not set out in law), must be agreed between you and your employer. This means your employer cannot change the terms of your contract without your consent.

Read more about changes to your employment contract.

Sources: Contract of employment (citizensinformation.ie), IBEC,