Recent Changes to Probationary Periods
It is important to be aware of recent employment regulations that came into effect on the 16th of December 2022. These are called the Transparent and Predictable Working Conditions Regulations 2022 (‘The Regulations’). The regulations insert new provisions into the Terms of Employment (Information) Act 1994 (‘The 1994 Act’). These can be highlighted as follows:
- Probationary periods in the private sector cannot exceed 6 months (for public servants cannot exceed 12 months). The regulations do provide for probationary periods to be extended ‘on an exceptional basis’ provided they do not exceed 12 months and it would be in the interest of the employee to extend.
- As such , if a probationary period is to be extended, then the extension should be on an exceptional basis, ie it should the be exception not the norm, and the extension should not be longer than a further 6 months and we would advise that no probationary period should extend by 11 months as this would bring the employee within the Unfair Dismissals Act.
- The Regulations also amend the Protection of Employees (Fixed Term Work) Act 2003 to provide for probation periods which are appropriate to the length of a fixed term contract ie if a fixed term contract 12 months then it is arguable that the proportionate probation period should be 3 months and not 6 months.
- Very importantly, the Regulations provide that if an employee who was already in employment on the 16th of December 2022 had a probation period which exceeded 6 months, then the probation period will be deemed to expire on the date that the probation period is due to expire under the contract or the 1st of February 2023, whichever is the early of those two dates.
- The regulations also provide for a situation where an employee maybe out sick for a period of their probation leave. In these circumstances the 6 months can be extended only by a maximum of the statutory 3 days leave which has been brought into force by the Sick Leave Act 2022. This will increase in the coming years. When the statutory sick pay will increase.
For further information on this or any other employment matter, please do not hesitate to contact Conor Cleary or Brendan Dillon on 012960666.
