Out-Law Analysis 5 min. read
23 Sep 2021, 2:09 pm
Employers in Ireland should keep their current approach to staff probationary periods under review with changes in legislation set to take effect next summer.
The Department of Enterprise, Trade and Employment has confirmed that primary legislation will be introduced into Irish law by 1 August 2022 to implement the EU’s 2019 directive on transparent and predictable working conditions. Ireland, along with other EU member states, will be required to ensure that staff probation periods typically last no longer than six months, subject to limited exceptions, from that date.
The department has opened a consultation seeking views on the benefits of capping the maximum probation period at six months in line with the EU directive. The consultation, which is open to responses until 3pm on Monday 25 October, also sets out details of new rights for employees and new obligations on employers deriving from the EU reforms, including around the information employers have to provide to new employees.
The 2019 directive intends to give employees in the EU the right to:
Irish employment law does not currently prescribe any maximum period of probation that employers can apply to new joiners. However, employers often include a probationary period in contracts of employment. Those probationary periods are typically set to last between three and 11 months. Generally, an employee will obtain rights to bring a claim for unfair dismissal under Irish employment law once they have served 12 months of continuous service.
Under the new directive, EU member states are required to ensure that, where an employment relationship is subject to a probationary period as defined in national law or practice, that period shall not exceed six months.
The directive also requires that, in the case of fixed-term contracts, the length of any probationary period should be proportionate to the expected duration of the contract and the nature of the work.
In the case of the renewal of a contract for the same function and tasks, the directive prohibits the introduction of a new probationary period.
However, employers may, on an exceptional basis, provide for longer probationary periods where this is justified by the nature of the employment, or in the interest of the employee. Where the employee has been absent from work during the probationary period, employers may provide that the probationary period can be extended correspondingly, in relation to the duration of the absence.
The introduction of a maximum probationary period will have a big impact on how employers address probationary periods in their contracts of employment, particularly employers that tend to extend the initial probationary period when assessing an employee’s performance. We would advise employers to monitor this development carefully and to keep their current position under review.
Though the 2019 directive is already in force, it will only have practical effect once new national laws have implemented it.
One area where there is existing law, in both the EU and Ireland, is in relation to the information employers must share with new employees.
The EU’s 1991 directive concerning an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship continues to apply currently, though it is due to be repealed from 1 August 2022, with the relevant updated provisions in the 2019 directive replacing the older law.
In Ireland, the 1991 directive was implemented by The Terms of Employment (Information) Act of 1994, which was subsequently updated by The Terms of Employment (Information) Act of 2014 and The Employment (Miscellaneous Provisions) Act 2018. The 2019 directive, however, requires the employer to provide more complete information on the essential aspects of the work to the employee in writing at the beginning of the employment relationship. This necessitates fresh primary legislation in Ireland.
Under the 2019 directive, employers will be required to inform employees of the “essential aspects of the employment relationship” in writing. The information to be provided in writing can be provided by electronic means. The basic information should be relayed to reach employees as soon as possible and at the latest within a calendar week from their first working day. The remaining information should be relayed to the employees within one month of their first working day.
The information to be provided is similar to the current requirements. It includes;
Written by Jason McMenamin of Pinsent Masons in Dublin.