RDJ Partner and Head of Employment Jennifer Cashman is a regular contributor to Legal Island. Following on from her extremely popular, "Review of the Year" sessions at the Legal Island Annual Review 2023, Jennifer takes the time to answer additional questions from the sessions.
Topic: Employment Contracts and Terms & Conditions
Q. Within a contract of employment, can you state that the notice period for employees is 2 months if they wish to leave, but only 1 month if the company is terminating employment?
A. Yes, an employer can choose either the statutory notice periods (which for an employee giving notice is always one week and for the employer giving notice, it differs depending on the length of service of the employee) or contractual notice periods (which for the employer giving notice should be longer than the statutory minimum periods outlined in the legislation. Notice for the employee leaving can be longer (although it should be noted that it is best practice to insert the same notice periods for both parties in the contract of employment).
Q. Are the same timeframes applicable to amendments to contracts as in with new employees?
A. The legislation provides that any changes to the core/5-day statement or the main statement of terms and conditions of employment must be notified to the employee, at the latest, on the day on which the change takes effect. A contract of employment may provide for a longer period (usually one month in advance of any change taking effect).
Q. Under parallel employment, if an employee is working as a volunteer or an unpaid role, can the employer provide objective grounds if there is a conflict of interest?
A. The incompatibility restriction relates to taking up employment with another employer, which would not apply to volunteer roles. But equally, the parallel employment provision also refers to taking up employment with another employer. Therefore, strictly speaking, there is nothing in the legislation preventing an employer from imposing a restriction on an employee taking up a volunteer role that is incompatible with the contract of employment and it would be best practice to set out the objective grounds for doing so from the outset, using those in the legislation as a guide.
Q. In terms of covering off requirements of written statement of terms can some of this be covered in employment handbook/policy as opposed to contract?
A. Yes, but would recommend as a matter of best practice including the heading and then setting out under the heading that the relevant provisions are set out in the Company Handbook/policy document.
Q. What determines being notified for changes in T&C's? Does it have to be written or verbal on the day of the change?
A. The notification of the change must be in writing, as set out in section 5 of the Terms of Employment (Information) Act, 1994.
Topic: Probationary Periods
Q. What is the guidance for probation periods for employees moving into new roles? Does this new legislation restrict the ability to apply probation clauses for new roles/new senior role?
A. Arguably, yes it does restrict the ability to apply probation clauses for new roles/new senior role. The legislation sets out that 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. Therefore, if an employee has already had a probationary period of 6 months when they commenced employment, they can’t be subject to another probationary period in the same employment. In any event, the value of a probationary period is to prevent an employee from getting the service (usually one year) for an unfair dismissal claim. Where an employee moves into a new role/new senior role, they will have the requisite service for any such claim so would be entitled to the full rigours of natural justice and fair procedures. So, the benefit of a probationary period is lost for such employees. Instead, proper performance management of the employee in the new role is the correct way to proceed.
Q. Why is there a difference between probation periods for public and private sectors? If legislation is 6 months, why should the public sector be exempt from the legislation of 6 months?
A. They are not exempt; it is just a longer period which is a social policy issue rather than a legal issue. In fact, FORSA, the largest Irish trade union for the public service, wants probationary periods in the public sector reduced to 6 months because they believe it is unfair on public servants to have a longer probationary period because it is a precarious time for employees.
Q. What would you consider a proportionate probation period for a 6-month contract?
A. It would depend on the role, but a 6-week period might be considered proportionate.
Q. When dismissing for performance during probation, are you better off not giving a reason but instead using a without reason clause from the contract terms and conditions?
A. It will depend on the circumstances but generally, if you want to avoid saying too much, the reasoning would be that the employee is not a good fit for the role. The less you say sometimes the better, but the other side is that the less you say can sometimes be the reason a person will feel very aggrieved and seek further advice.
Q. Can you still include a term that the normal disciplinary process will not apply in probation in relation to misconduct i.e., you may move to dismissal / end probation rather than move through each step?
A. Yes, you can, and you should. But remember that if you are terminating for misconduct, employees are entitled to fair procedures (unlike performance reasons during probation).
Q. Probation - how best to approach where an employee would like to extend as a reasonable accommodation - e.g., disabled, or neurodiverse staff who feel that they need more time to demonstrate capability?
A. That should be done with the benefit of occupational medical input and should meet the criteria in the legislation of being “on an exceptional basis” and “in the interest of the employee.”
Q. If an employee's probation is extended or paused due to ill health or pregnancy-related, and probation overruns 12 months, does the UDA still apply at 12 months?
A. Yes, it does.
Q. Do you have a view of the ability of an employer to extend probation for the duration of sick leave taken under a more advantageous company scheme?
A. The legislation suggests that it is only absence under the sick leave legislation which pauses probation (which is the 3 days, soon to be 5 days). So, the safer way to proceed would be to extend the probationary period for sick leave absences longer than that.
Q. When extending probation due to sick leave is there a minimum sick leave time where you would extend or add on any day’s sick leave?
A. It will depend on the circumstances. You cannot extend beyond 12 months and the extension must still meet the legislative criteria of being on “an exceptional basis” and “in the interests of the employee”.
Q. Is someone on sick leave for, let’s say, 5 months of their 6-month probation, would it not be deemed reasonable to pause for that period?
A. It might very well be reasonable but is not provided for in the legislation – in those circumstances, instead of pausing, it would be safer to extend on “an exceptional basis” and “in the interests of the employee."
Q. In the public service, can a 12-month probation be extended on the same grounds as those for the private sector?
A. No, there is no scope for extending the public sector 12-month probationary period.
Q. In the public sector, if employee issues occur between 9- and 12-months probationary period, is there any way it can be extended beyond 1 year as this would be beneficial to the employee?
A. No, not provided for in the legislation.
This article first appeared as part of Legal-Island's Employment Law Hub.