Thursday 20 June 2019

Can I terminate employment when someone doesn't deliver during a probation period?

It is important when offering feedback to highlight your concern while offering support
It is important when offering feedback to highlight your concern while offering support

Leadership advice: Caroline McEnery

Query: I hired an employee three months ago. Her contract outlines that she is on probation for the first six months of employment. I have not met the employee to tell her that I am not happy with her performance but I feel she is not up to the standard I would expect her to be at this stage. Is it okay to terminate her employment now due to failing probation?

Answer: Most employees will pass probation with no issue. The first probationary review feedback session should be to confirm that the new employee has received appropriate induction, training and that they are receiving ongoing support to help them succeed. However if there are consistent issues thereafter you need to consider whether they are going to pass their probation period. It is most important when managing probation that you highlight your concerns and give the new employee every opportunity to improve whilst offering continuous support along the way.

The probationary period allows you, as the employer, some time to make sure that the selection you made for the vacancy within your company was the right choice and fit for your company. It is an ideal opportunity for you to evaluate the employee's performance and general suitability for the role.

The Legal Side: We advise our clients to incorporate a probationary period of 11 months into the contracts and handbook.

The employee must have 12 months of service with your Company to make a claim under the Unfair Dismissals Act. There is a common misconception amongst many employers that there is no liability for this employer to dismiss this employee as she has only three months' service. However, it is important to understand that this employee, who does not have one year's service, can make a complaint in relation to the manner of their dismissal under the Industrial Relations Act, 1969. There is no service qualification under this Act unlike the Unfair Dismissals Act.

Your Obligations: To ensure you are managing probation correctly it is important to understand the obligations on your end as an employer.

These obligations are many but include:

  • Ensure the contract includes probation.
  • Ensure you have advised the new employee exactly what is expected from them at the various stages throughout their probation.
  • Ensure their performance is easily measurable to accurately track progress.
  • Inform the employee you will conduct regular probationary review meetings.

Time-frames: We advise all clients to hold a minimum of three probationary review meetings with an employee. It is vital that you conduct probation meetings with employees who are doing well and those who are doing poorly. This shows fairness of process and allows for constructive feedback to be provided regardless of how well a team member is doing.

Probation Meetings: The purpose of formal probation meetings is to offer feedback on the various aspects of the employee's performance by explaining the areas where they are excelling, and areas where improvement is needed.

Follow-Up: Make sure you do a follow-up letter after all probationary review meetings. This should be done in the following 2-3 days of the meeting for timeliness and accuracy. The letter should include exactly what was discussed in as much detail as possible. Remember, if it's not in writing it didn't happen.

Failing Probation: If an employee's performance is not improving, after they have been given feedback and support, it is important that you inform them from the early stages, in the follow-up letters, that a failure to improve may result in them failing their probation - in writing. This ensures that you have been reasonable in allowing the employee a reasonable amount of time to improve. Invite the employee to the final probation meeting via letter. Meet with the employee for a final probationary review meeting and explain why they have failed. Ensure this is also followed up in writing.

An employee is entitled to one week's notice if their employment is being terminated as a result of failing their probationary period. However, be sure to check your contract of employment to make sure you haven't contracted more notice.

  • Caroline McEnery, MD of The HR Suite, is a member of the Low Pay Commission and is an adjudicator in the Workplace Relations Commission

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