Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine...

Probationary Periods must be Proportionate to the Length of a Fixed Term Contract

In An Assistant Lecturer v An Institute of Technology (ADJ-00050085) the Workplace Relations Commission (the WRC”) examined the issue of proportionality in probationary periods.

The Complainant was employed by the Respondent institute as a part-time assistant lecturer on a 24-month fixed term contract of employment. His probation period was 12 months long. He brought complaints to the WRC under the Terms of Employment (Information) Act, 1994 (the “1994 Act”) and the Protection of Employees (Fixed-Term Work) Act, 2003 (the “2003 Act”) challenging the length of the probation period..

Decision: The Adjudicator, Mr. David James Murphy, considered section 6D of the 1994 Act, which states:

“ (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.”

Both parties agreed that the Complainant is a public servant and that a 12 month probation period was in compliance with this Act.

The Complainant advanced two arguments under the 2003 Act. The first was that his probation clause constitutes less favourable treatment when compared with permanent staff. The second was that it was disproportionate to the overall length of the contract.

The Adjudicator considered that all employment contracts issued by the Respondent provide for a probationary period of 12 months and therefore did not accept that the Complainant established that he had been treated less favourably than a comparable permanent employee.

The Adjudicator then considered whether the probationary period was proportionate. The Adjudicator referred to the amendment that was made recently to the 2003 Act to incorporate Directive (EU) 2019/1152 on transparent and predictable working conditions. Section 9A of the 2003 Act now states as follows:

“9A. (1) Notwithstanding section 6D of the Terms of Employment (Information) Act 1994 , where a fixed-term employee has entered into a fixed-term contract with an employer which provides for a probationary period, the length of such probationary period shall be proportionate to the expected duration of the fixed-term contract and the nature of the work.

(2) Where an employer proposes to renew a fixed-term contract for the same functions and tasks, the fixed-term contract shall not be subject to a new probationary period.

(3) A word or expression that is used in this section that is also used in Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 201910 on transparent and predictable working conditions in the European Union has, unless the contrary intention appears, the same meaning in this section that it has in that Directive.”

The Adjudicator accepted that a probationary period of 12 months in a 24 month contract is high, however this does not necessarily make it disproportionate, but it put the onus on the Respondent to show how it is not.

The Respondent’s explanation to the WRC as to how the probationary period was set was that it was decided by a sectoral agreement. The Respondent did not provide justification for the probation period. The Adjudicator commented that there was nothing related to the Complainant’s role that required such a long period of probation. The Adjudicator noted that the Respondent did not dispute the Complainant’s evidence that he had never even received a performance review with his manager and that there was no structured probation policy in operation where an employee is assessed against stated goals.

The Adjudicator held that the probationary period of 12 months was not grounded in any process to monitor performance or provide feedback, but rather appeared to be just a threat of sudden dismissal. In those circumstances, the Adjudicator held that the probationary period was disproportionate and awarded the Complainant €1,000 in compensation. He also directed that the Complainant’s probationary period be reduced to six months from the commencement of his employment.

Takeaway for Employers: This decision is a reminder to employers about the changes to probationary periods following the implementation of Ireland’s obligations under EU Directive 2019/1152 on transparent and predictable working conditions. In the private sector, a probationary period should not exceed six months save where there is an exceptional basis for it to be longer and in any case, it may not exceed 12 months. Furthermore, extensions to probationary periods can only be made if they are in the “interests of the employee���.

Both the legislation and this decision affirm that in the public sector, probationary periods may be longer (up to 12 months). However, the onus is on the public sector employer to demonstrate that the length of the probationary period is not disproportionate.

Employers should note that the low award in this case should be read in the context that the Employee had specifically confirmed he did not want any compensation.

Link - https://www.workplacerelations.ie/en/cases/2024/april/adj-00050085.html

Authors – Jane Holian and Laura Killelea

Facts: In the WRC case of Padraic O’Toole v. Department of Agriculture, Food & The Marine...

Probationary Periods must be Proportionate to the Length of a Fixed Term Contract

In An Assistant Lecturer v An Institute of Technology (ADJ-00050085) the Workplace Relations Commission (the WRC”) examined the issue of proportionality in probationary periods.

The Complainant was employed by the Respondent institute as a part-time assistant lecturer on a 24-month fixed term contract of employment. His probation period was 12 months long. He brought complaints to the WRC under the Terms of Employment (Information) Act, 1994 (the “1994 Act”) and the Protection of Employees (Fixed-Term Work) Act, 2003 (the “2003 Act”) challenging the length of the probation period..

Decision: The Adjudicator, Mr. David James Murphy, considered section 6D of the 1994 Act, which states:

“ (1) Subject to this section, where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months.

(2) The probationary period of a public servant shall not exceed 12 months.”

Both parties agreed that the Complainant is a public servant and that a 12 month probation period was in compliance with this Act.

The Complainant advanced two arguments under the 2003 Act. The first was that his probation clause constitutes less favourable treatment when compared with permanent staff. The second was that it was disproportionate to the overall length of the contract.

The Adjudicator considered that all employment contracts issued by the Respondent provide for a probationary period of 12 months and therefore did not accept that the Complainant established that he had been treated less favourably than a comparable permanent employee.

The Adjudicator then considered whether the probationary period was proportionate. The Adjudicator referred to the amendment that was made recently to the 2003 Act to incorporate Directive (EU) 2019/1152 on transparent and predictable working conditions. Section 9A of the 2003 Act now states as follows:

“9A. (1) Notwithstanding section 6D of the Terms of Employment (Information) Act 1994 , where a fixed-term employee has entered into a fixed-term contract with an employer which provides for a probationary period, the length of such probationary period shall be proportionate to the expected duration of the fixed-term contract and the nature of the work.

(2) Where an employer proposes to renew a fixed-term contract for the same functions and tasks, the fixed-term contract shall not be subject to a new probationary period.

(3) A word or expression that is used in this section that is also used in Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 201910 on transparent and predictable working conditions in the European Union has, unless the contrary intention appears, the same meaning in this section that it has in that Directive.”

The Adjudicator accepted that a probationary period of 12 months in a 24 month contract is high, however this does not necessarily make it disproportionate, but it put the onus on the Respondent to show how it is not.

The Respondent’s explanation to the WRC as to how the probationary period was set was that it was decided by a sectoral agreement. The Respondent did not provide justification for the probation period. The Adjudicator commented that there was nothing related to the Complainant’s role that required such a long period of probation. The Adjudicator noted that the Respondent did not dispute the Complainant’s evidence that he had never even received a performance review with his manager and that there was no structured probation policy in operation where an employee is assessed against stated goals.

The Adjudicator held that the probationary period of 12 months was not grounded in any process to monitor performance or provide feedback, but rather appeared to be just a threat of sudden dismissal. In those circumstances, the Adjudicator held that the probationary period was disproportionate and awarded the Complainant €1,000 in compensation. He also directed that the Complainant’s probationary period be reduced to six months from the commencement of his employment.

Takeaway for Employers: This decision is a reminder to employers about the changes to probationary periods following the implementation of Ireland’s obligations under EU Directive 2019/1152 on transparent and predictable working conditions. In the private sector, a probationary period should not exceed six months save where there is an exceptional basis for it to be longer and in any case, it may not exceed 12 months. Furthermore, extensions to probationary periods can only be made if they are in the “interests of the employee”.

Both the legislation and this decision affirm that in the public sector, probationary periods may be longer (up to 12 months). However, the onus is on the public sector employer to demonstrate that the length of the probationary period is not disproportionate.

Employers should note that the low award in this case should be read in the context that the Employee had specifically confirmed he did not want any compensation.

Link - https://www.workplacerelations.ie/en/cases/2024/april/adj-00050085.html

Authors – Jane Holian and Laura Killelea