All too often we come across situations where the employer has completely messed up the probationary period. Before we get to examples, remember that the probationary period is for the benefit of both the employer and the employee, so that each can work out whether they have a future relationship together. In our experience the optimum probationary period is 6 months, because the employer will get to know the skills and indeed the weaknesses of the employee within that six month period. It is possible to provide in the contract of employment for an extension of the probationary period but remember under Irish law you cannot extend the probationary period beyond the period of twelve months. We also provide that in the course of the probationary period either party can terminate with one weeks’ notice, and we usually provide in the contract that the employee can be paid in lieu of that notice.
A common issue that arises is what an employer should say to the employee when advising that the employee is not being kept on. Our best advice is to keep it as general as possible and simply confirm that it just has not worked out. What must be avoided at all costs is to refer to either poor behaviour, attitude or application, or to refer to performance issues on the part of the employee. Our advice is to keep it simple: tell the employee it simply has not worked out.
Of course, it is worse again for the employer not to provide for any probationary period, should the employer fail to issue a contract of employment to the employee. It still happens, and in effect the employee is made permanent from the commencement of employment.
If you want guidance on this or other employment law issues then do not hesitate to get in contact with us.