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Published 15 March 2019
Dismissals during the probationary period are often considered to be safe because an employee will not have the requisite one year's service requirement in order to bring a claim under the Unfair Dismissals legislation. Employers need to think again. Treatment of staff, including dismissals, during probation is not immune from challenge. This has been well illustrated in various recent decisions published by the Workplace Relations Commission. In this article we highlight some of the issues for employers to consider in managing probation periods generally and, in addition, the risk of exposure for employers where a dismissal could be linked to discrimination.
The October 2018 Labour Court decision in Beechside Company Limited T/A Park Hotel Kenmare v A Worker1 drew a lot of publicity largely owing to the substantial award of €90,000 that the Labour Court recommended be made to the complainant, a General Manager of the Hotel. He was dismissed during his probationary period and took a claim not for unfair dismissal as such, but rather a complaint under the Industrial Relations legislation. Those claims tend to entail allegations of unfair procedures and there is no minimum service requirement. The Labour Court found that the hotel had failed to follow fair procedures prior to dismissing the manager. For instance, it failed to warn him that his employment was in jeopardy; he was not provided with reasons for his dismissal; and he was not afforded an opportunity to reply.
Employers should ensure that they have appropriately drafted probationary clauses in their contracts of employment and that managers have access to the necessary guidance when seeking to rely on such clauses and in effecting such dismissals. Employers may wish to reserve the right to abridge their procedures during probation and must always be cognisant of how a third party would view the process in the event of a challenge. Industrial relations awards are not binding in the same way as Unfair Dismissal awards are. However, many employers correctly exercise caution in view of the potential adverse publicity and impact on employee relations in addition to the potential costs of meeting any such recommendation.
Another potential exposure, and often seen as being potentially more serious and sensitive, are claims under the Employment Equality Acts. While Workplace Relation Commission and Labour Court recommendations under the Industrial Relations legislation are not in general binding, awards for discrimination are fully enforceable and they can be substantial. Why is this important for employers managing probationary periods? In short, there is no service requirement to bring such a claim. Discriminatory dismissal complaints are frequently made by employees who have been dismissed in the early days of their employment and including while on probation. In addition, employees can bring a further claim if they are victimised in retaliation for having, among other things, made a complaint of discrimination to their employer.
Discrimination in this context includes treatment related to any of the following nine grounds of discrimination: gender, marital / civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community. If a dismissal is connected to one or more of those grounds, various remedies can be awarded, including compensation of up to two years' remuneration. This is a powerful remedy and the awards can be significant even where the aggrieved employee immediately finds a new position. Awards are not linked to loss of wages, but rather the effects of discrimination and they take into account distress suffered by the complainant. Adjudicators can also direct an employer to take certain steps, such as to review or implement a particular policy or to provide appropriate training to managers. In addition, the employer can be named in the publication of decisions with the very real prospect of negative publicity.
Adjudicators are cognisant of attempts by some employers to dismiss employees under the guise of performance or conduct issues. In a case decided in November, Boyce v Ras Medical Limited Auralia2, the WRC found that although the respondent had "proffered 7 pillars of work performance related issues" as the reason for dismissing a pregnant employee during her probationary period, it had not substantiated these assertions "with hard facts or evidence" and fair procedures had not been followed. It held that her dismissal "was not unconnected to her pregnancy" and upheld her claim of victimisation. The award in that case was €27,000 in relation to the dismissal. This represented a year's salary.
Where an employee wishes to let go a member of staff, they should ensure that there is a defensible basis for doing so. Furthermore, employers must apply the level of fair procedures appropriate to any given scenario. It will sometimes be necessary to consider potential discrimination concerns and seek to avoid or minimise the risk of a claim that discrimination is a factor in decision making. In every case there would ideally be a clear paper trail demonstrating that the entitlements and expectations attaching to dismissals have been met.
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