A key element of the probation process is the manager's responsibility to provide immediate and honest feedback,

Probation

Termination during a probation period

The initial 10 days of an employee's induction are crucial and sometimes things just don't work out. Despite the best onboarding experience, it could just be a bad fit for everyone. This article discusses the process of letting someone go during these early days of onboarding when it's clear that the fit isn't right for either party.

From the moment a new hire steps through our door, they embark on a journey of integration and adaptation. They are nervous, and they need you to help them navigate their first few weeks. Work can at times be complex and overwhelming, with a lot of technical jargon to understand. It begins with the formalities of signing the contract of employment and acknowledging the contents of the employee handbook. These initial steps lay the foundation for a mutual understanding of rights, responsibilities, and expectations between the Company and our new employee. 

Probation is the process we use to ensure the new employee can do the job we hired them to do, as well as integrate them into our values and culture. This period is not merely a formality but a strategic opportunity for managers to observe, guide, and support the new employee’s growth.

A key element of the probation process is the manager’s responsibility to provide immediate and honest feedback. Constructive criticism, coupled with encouragement, facilitates rapid learning and adjustment, enabling the new employee to make meaningful contributions sooner.

Recognising the importance of clarity and alignment, I cannot overstate the significance of conducting ‘lite check-ins’ at the conclusion of the first and second weeks. These concise yet purposeful discussions play a pivotal role in ensuring that the newly onboarded employee fully grasps their role, duties, and performance expectations. These check-ins offer an opportunity for managers to address any emerging concerns, offer additional support or resources, and reiterate the Company’s commitment to the employee’s success. Additionally, there are instances where these check-ins may entail the challenging decision of discontinuing the onboarding process due to a misalignment between the new employee and the job or the Company. Though rare, it sometimes does happen, and it’s important to be prepared to handle such situations with tact and empathy.

'lite check-ins' at the end of the first and second weeks.

Managers often approach me with this common question: How should they address employees who aren’t adapting to their roles or struggling with training materials? This could include individuals who consistently arrive late during their initial weeks, take too long on breaks during the training modules, or just simply display disinterest in the training or their assigned tasks. Numerous factors can contribute to a mismatch between a person and their role, underscoring the importance of timely, candid feedback. Even when it entails delivering constructive criticism, it’s crucial not to procrastinate in providing employees with transparent insights into their performance.

From 1 August 2022, probation periods in the Republic of Ireland cannot be more than 6 months. In exceptional circumstances, the probation may be extended by the employer, but it must be outside the norm and can be extended by a further 6 months (up to a maximum of 12 months in total). The probation can be extended where the employee has been on extended leave (sick leave) during the probation period.

Where an employee has less than one year service and is dismissed during their probation period, the Unfair Dismissals Acts 1997–2015 will not apply, provided that the employee:

  1. Is issued with and has signed their Contract of Employment in Writing.
  2. There is a probation clause in the employment contract which outlines the procedure for probation.
  3. Is party to fair procedure in relation to feedback on their work.

Probation Clause: The first consideration is to ensure there is a probationary period clause in the employment contract and that such a clause allows the employer to dismiss the employee at any time during this period without the application of fair procedures. In simple terms, every worker deserves fairness at work, including during training and feedback sessions. However, this fairness doesn’t always apply if someone is let go for not doing their job well, especially during a probation period. Still, it’s important for employers to let employees know what they’re not doing right and give them a chance to improve before any decisions are made.

Contract of Employment: The Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on Irish employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date. The effect of not providing a contract of employment means that the employment relationship could be considered ‘tarnished’ with uncertainty, and it is difficult for the employer to assert their rights during, and at the termination of the employee’s employment if things don’t work out. 

For Cause: As previously mentioned, the employer does not have to give a specific reason to the employee with regard to the termination (during probation). Once the employer stays within the parameters of the probationary clause when dismissing the employee and does not get into the reasoning, i.e. does not ‘dismiss for cause’, there should not be any concern of a wrongful dismissal or breach of contract claim.

An employer dismissing an employee during probation should simply tell the employee that it is not working out and not get into any detail. It should be pointed out what training they received, policies and procedures they have been issued with as well as any other material which shows the efforts the employer has gone to, to help them in their new role. The employee should be informed whether he/she is required to work the notice period or is being paid in lieu.

Equality: if the employee is dismissed during probation, and they can argue based on one of the 9 grounds of discrimination under the Employment Equality Acts then a reason should be set out to illustrate that it has nothing to do with discrimination. 

Discrimination may occur if the employee can argue that they are being discriminated against by being treated less favourably than someone else (based on the nine grounds). The 9 discriminatory grounds being race/place of origin, age, gender, family status, civil status, religion, sexual orientation, disability, and membership of the Travelling Community. The law in the Republic of Ireland relevant to this area is largely set down in The Employment Equality Acts 1998-2011. These pieces of legislation deal specifically with discrimination in the workplace, and cover recruitment policies, equal pay, dismissal, harassment, and training opportunities.

Minimum notice: Under the terms of the Minimum Notice and Terms of Employment Acts, 1973-2005, an employee or employer who intends to terminate a contract of employment must provide the other party with specified minimum notice. The Act states that the exceptions are if you’ve been with the company for less than 13 weeks (probation) or if there’s no contract specifying a notice period. Employers must give employees, who have been in continuous service, notice dependent on the length of the employee’s service. Required Notice for an employee who has more than 13 weeks, up to 2 years continuous service must be given one week’s notice, and they can elect to ask the employee not to come to work for this time (but must still pay the salary for the notice period). 

Recommended Process for termination during probation (short service dismissal):

Although an employer is not obligated to provide an employee with notice of their contract being terminated prior to their 13 weeks of service being completed, it is best practice to give an employee at least one weeks’ notice if they are deemed unsuitable for the role they are in.

  1. Review Employment Contract: Before taking any action, review the terms of the employee’s contract, paying particular attention to probationary clauses, termination clauses, and notice period.
  2. Onboarding and Induction: Ensure the employee has received proper training and induction, with the opportunity to ask questions and learn. Ensure this process allows for feedback to the employee about how they are progressing and grasping the new role. 
  3. Employee Handbook: Ensure the employee has received, understood, and has signed either a copy of the handbook or a document stating they have received and understand it.
  4. Documentation: Document the rationale for the termination. Gather any relevant evidence to support the decision. 
  5. Notification of Termination: Arrange a meeting with the employee to discuss the termination. Provide written notice of the termination (termination letter). 
By investing time, attention, and genuine care into the onboarding and development of new employees, managers not only foster individual growth but also contribute to the overall strength and resilience of the organisation.
  1. Provide Support and Explanation: During the meeting, provide the employee with an opportunity to ask questions and seek clarification on the reasons for termination. It is important not to offer detailed information – if the employee is not fitting into the role, and they have been given appropriate training and feedback during their onboarding and induction training then they simply need to be told of the feedback they have been given during the training period and that the Company is not happy progressing with the relationship and wishes to terminate. 
  2. Final Payments: Calculate and arrange final payments for the employee, including any outstanding wages, accrued holiday pay, and any other entitlements as per their contract and statutory requirements.
  3. Return of Company Property: Collect any company property in the employee’s possession, such as keys, access cards, laptops, or mobile phones. Ensure that all company-owned materials are returned promptly.
  4. Confidentiality and Non-Disclosure: Remind the employee of their obligations regarding confidentiality and non-disclosure of sensitive company information, even after termination.
  5. Update Records: Update internal records and systems to reflect the employee’s termination. This includes payroll records, access permissions, and any other relevant databases or documentation.
  6. Exit Interview (Optional): Offer the employee the opportunity to participate in an exit interview to provide feedback on their experience with the company. This can help identify areas for improvement and inform future hiring decisions.
  7. Communication with Team: Notify relevant team members or stakeholders about the employee’s departure, being mindful of confidentiality and privacy considerations.

Case Law – Dismissal during probation

In C & W O’Brien Architects v A Worker (LCR22301), 2020, the Labour Court heard a case relating to a worker who commenced employment on 06 January 2020 on a salary of €70,000 but was summarily dismissed on 17 February 2020. He was headhunted by the company to accept a role as the Financial Controller at the Company. His employment lasted 27 Days, and he was dismissed during the initial stages of his probation. There is no reference to onboarding or induction training in the Court proceedings. 

During the Labor Court hearing, the employee informed the court, he hadn’t found another job since being fired. His contract said he had a 6-month trial period, with a one-week notice period. Although his contract mentioned a company disciplinary policy, he was never given a copy of it or the employee handbook. The employee was summarily dismissed by his new employers’ CEO on 17 February 2020 without any prior warnings or indication that either his conduct or his performance was unsatisfactory. The worker told the Labor Court he left a secure job for this new one, so being let go like this was unfair and with no real notice. There is no evidence in the Court proceedings relating to his competence or capability to the role, and in this case – that is irrelevant (although many employers rely on this when making a decision). The Labor Court agreed, saying that even during a trial period, employers still need to be fair in their approach to employee feedback and following procedure.

The Labour Court pointed to the code of practice in, which must be complied with before any decision is taken by an employer to dismiss an employee during his/her probationary period. They also referred to a set of rules about how to handle complaints and discipline at work (grievance and disciplinary procedures made under the Industrial Relations Act), which the employer didn’t follow before firing the worker during his trial period. 

The Labor Court said the worker should get €60,000 compensation plus €754.31 for unused vacation time, considering his salary and what he lost since being let go. The cost, if equated to a daily rate for his 27 days of employment, was over €2,000 per day to the employer!

What’s the learning?

Early probation feedback is critical, particularly when it doesn’t end well. It’s your job as the Line Manager to ensure the new employee knows what is expected of them and are learning in their new role. 

  1. Rely on Contractual Documentation: Always refer to the employment contract, employee handbook, relevant policies, and procedures, and ensure a well-documented onboarding and training process.
  2. Timely Training Documentation: Have employees sign and understand their training materials as they go, rather than waiting weeks before asking for confirmation.
  3. Comprehensive Onboarding: Provide detailed training and onboarding tailored to the company’s size and the employee’s role.
  4. Early Feedback: Offer feedback within the first 10 days of employment. Check in on how the employee feels they’re doing—it’s possible they’re struggling or unhappy, don’t be afraid to ask. 
  5. Procedural Feedback: Follow proper procedures and give notice when scheduling feedback meetings during this critical initial period.

Document Everything: Keep records of all conversations and interactions.

If you are terminating an employee during the probation period and you would like to see a sample letter, contact us at: rayhoare@careerdynamics.ie We are happy to send you a template.