Employer Resources Newsletter - Sept 2023

Probationary Periods and the Transparent and Predictable Working Conditions Regulations

It has been eight months since the have the commencement of the Transparent and Predictable Working Conditions and with that has come a requirement to approach the application and management of probation in a fully compliant way.

Probationary periods were previously not subject to statute and were exclusively governed by the terms laid out in contracts of employments and/ or policy. However, the Regulations now provide that where an employee is subject to a probationary period at the commencement of employment, that period shall not exceed six months, except in limited circumstances. 

In those limited exceptions the maximum period may be extended to no more than twelve months.  It is also possible to extend the probationary period beyond 6 months if the employee was absent from work on certain grounds (e.g., leave) during the probationary period. Probationary periods for fixed-term employees must be proportionate to the expected duration of the contract and nature of work and any renewal of the contract should not attract a new probationary period. 

Purpose of the Probationary Period

The purpose of a probationary period is to monitor progress and suitability for the continuation of employment.  But the obligations of an employee demonstrating their suitability and competence in the role can only succeed if the manager provides the necessary training and support enabling the employee to meet the required standards. 

With the Transparent and Predictable Working Conditions now applicable it is more important than ever to ensure the proper assessment and procedures are applied. 

Top Tips in Managing Probationary Periods

• Clearly outline expectations of role identifying key deliverables and how success is measured 
• Communicate clearly the purpose of the probationary period 
• Record the objectives of the role on a probationary review form
• Diarise the interim and final probationary review meetings 
• Conduct regular progress reviews and maintain records of all assessments and any follow up actions required by the employee or support actions required by the manager
• Ensure any shortcomings in the role and details of supports to enable improvement are discussed with the employee and maintain records of both 
• Record any improvement plan and supports agreed and highlight risk to employment where shortcomings persist
• Conduct final overall assessment shortly before the end of the probationary period and arrange to meet with the employee to advise him/her of the outcome.
• Where probation is successful the line manager should advise the employee of this at the meeting, and this should be confirmed in writing.  The employee should be advised that their position has been confirmed.
• Where probation is extended, this should be done in line with the probation procedure in the employee’s contract of employment and in compliance with the EU (Transparent and Predictable Working Conditions) Regulations and confirmed in writing.
• Where employment is not being confirmed due process should be applied meaning an organisation should apply a process in a similar way to the dismissal of an employee who is not on probation. 

Dismissal during Probation

The requirements regarding the dismissal of an employee on probation generally depends on the terms of the employee’s contract of employment and the relevant policies. While it is best practice for a contract of employment to detail that the full rigours of the disciplinary procedure will not apply to employees on probation, an organisation should still apply fair procedures and natural justice to the employee.

This can include:

• Warning the employee that their performance and/or conduct is not satisfactory.
• Allowing a reasonable chance to improve performance and/or conduct.
• Assisting the employee to improve (e.g., providing training, support).
• Providing advance notice of the risk to employment, advance notice of any evidence relating to the shortcomings, advance notice of the review meeting, permitting representation, adjourning any final review meeting prior to deciding whether or not to retain the employee. 

Following thorough consideration, a meeting would be reconvened to advise of the outcome. Where termination is the outcome, this should be detailed in writing with the reasons clearly stated and explained. Provision of adequate notice per their contract of employment is essential and outlining details of an appeal mechanism important.

With any purported dismissal during probation, it is strongly advisable that the employee has continuously been made aware of the shortcomings relating to their performance or conduct prior to the decision being taken.

And where a scaled-back version of the disciplinary process is applied, this must only relate to those employees on probation who have less than 12 months service (including notice). All probationary periods serve a specific purpose, and it is of paramount importance that effective practices and management are applied to both enable and ensure the appropriate use which is fully compliant with all employment legislation. 

Finally, employers must be aware of the risks that exist with any non-compliance. An employee who has been dismissed on probation can still lodge a claim of Unfair Dismissal under the Industrial Relations Acts where the service requirement of 12 months does not apply, and it is not uncommon for claims of unfair dismissal under this Act to arise. It is also possible for claims of dismissal to arise under the Employment Equality Acts 1998 – 2015 or where the employee is making a protected disclosure.

Award of €40,000 given to employee who was coerced out of his employment.

Employee returned from Annual leave to find out that he had to either take a Reduced Position or accept Redundancy.

Background:

The complainant was employed as a life coach with the respondent social care organisation. the employment began on 4 April 2005 and ended on the 20 September 2019. The complainant alleged that he had been unfairly dismissed by means of a spurious redundancy. This was rigorously denied by the respondent employer.

The rate of pay was stated to be €39,911 per annum for a 35-hour week.

Summary of Complainant’s Case:

The complainant gave an oral testimony assisted by his wife acting as a representative.

He had returned from annual leave on Monday 29th July 2019. On his return he was informed by the then General Manager, without prior notice, that he had to either take a reduced position or accept redundancy. He was given no reasons for this situation and all proper employment procedures were ignored. He was told he had to decide by Friday 2nd August 2019 which option he was choosing. The complainant made various unsuccessful efforts to establish the reasons for this position from the then general manager. He wrote a memo on August 1st asking for reasons and details of the alternative position. The complainant was told verbally that “he had all the information he needed”.

On August 9th, under severe distress and effectively coercion, the complainant signed the letter stating that he was accepting redundancy. On the 12th of August the administrator offered details of an alternative facilitator position at a reduced salary of €34,668. The complainant signed this letter, declining the alternative position, again under severe distress as he was told that if he did not sign, the redundancy offer would be withdrawn, and he would simply be dismissed without a severance package.

Following these incidents, the complainant served out his notice and left the employment on 20 September, 2019.

In mid-August a dispute arose over the complainant’s respondent supplied laptop /memory sticks. Allegations of serious data protection breaches were made. The complainant was accused of gross misconduct. However, these issues were resolved with the then general manager confirming that she would allow the redundancy payments to go ahead.

The complainant lodged an appeal to the board on 21 September. A reply was received on 28 November, stating that “there is no case to answer”. No appeal was heard.

The complainant argued strongly that throughout the entire process he was denied all normal employment rights. He was coerced into signing the redundancy agreement without out any proper consultations and likewise the letter declining the alternative position. He was not allowed any opportunity of professional representation and the entire process was rushed through in complete disregard of all his rights.

The redundancy was spurious, and the entire process was simply an egregious breach of all employment rights.

In cross examination the respondent put it to the complainant that the complaint was simply about increasing his severance pay and that he had very unreasonably declined the alternative job offer. It was accepted that the salary was marginally lower but in the long run the complainant would have retained all his benefits such as life insurance and pension. The complainant stated in reply that the relationship with the employer had become “toxic” following the meetings/letter of the end of July. In addition, he was given no proper details for the alternative position and no proper time to even consider it properly. He was coerced /railroaded out of his employment.

Summary of Respondent’s Case:

The respondent submitted a written submission and oral testimony. In July 2019, the then General Manager, informed the complainant that his position was at risk of redundancy. An alternative role as a day service facilitator was discussed. Additional information was requested by memo in August and supplied.

On 9 August the complainant confirmed in writing that he was accepting redundancy and on 12 August confirmed that he was not accepting the alternative work offer. The redundancy came into effect on 20 September, 2019. The alternative position was well known to the complainant and while it had a marginally lesser salary it would have continued the employment relationship in existence since 2014.

In mid-August a period of unpleasantness arose over a data protection issue but was resolved quickly.

The current respondent general manager, who was appointed a considerable time after the ending of the employment, explained that the role model had to be seen in the context of evolving clinical practices and changing HSE Policy Directives in this disability sector. The redundancy of the complainant could, she felt, be possibly explained on this basis. She was not employed with the respondent at the time and could only speculate regarding events in 2019. The then general manager was no longer employed and was not available for the hearing.

The respondent maintained that the redundancy had been properly carried out in keeping with all regulations. The complainant had not appealed the decision in the period up to his redundancy on 20 September 2019. His letter to the board was after the event complained of and could not be seen as an employment/redundancy appeal. The board had considered it carefully but had come to the proper conclusion that they had no employment case to answer.

The redundancy was genuine, and no case could exist under the Unfair Dismissal Act, 1977. It was also noted that the complainant had made little or no efforts to mitigate any losses arising from the redundancy.

Findings and Conclusions:

In the case in hand the complainant returned from his annual leave and was informed, it appears without any prewarning that his position was at risk of redundancy. His sworn evidence was that the Manager, made it clear that it was either accept a lower paid job or take redundancy. There were no other alternatives. Efforts at discussion appeared to have been rebuffed. The complainant described the atmosphere as “toxic”.

The major difficulty for the respondent is that the then general manager was not available to give evidence nor was the administrator at the time. The respondent party at the hearing effectively stated that it was all “before their time” and all they had were paper records which clearly showed that the complainant had signed for and accepted redundancy.

The complainant maintained that he had been placed under extreme duress and coerced into signing these documents.

The adjudication viewpoint has to be based, in the absence of the key respondent witnesses, on the overall context and the oral evidence on the day of the hearing. Regrettably the complainant had fallen seriously ill since 2019 and was limited in his ability to give evidence.

A redundancy consultation in a case where there are multiple workers is required to be of at least 30 days duration. In this case the complaint is advised of being at risk on 29 July 2019 and given until Friday 2 August to give his decision. He eventually gave his decision on 9 August 2019. This is unseemly haste and has to support the complainant’s view that he was unfairly pressurised. 

Decision:

A complaint of Unfair Dismissal has been successfully made out.

The respondent pointed to what he felt were indifferent attempts by the complainant to secure alternative work. This was contested by the complainant. He did acknowledge that he returned to education to secure qualification in early years education. Covid 19 then appeared which made securing other work very difficult.

The complainant sought compensation. Reinstatement and reengagement were obviously not appropriate especially in view of the current health situation of the complainant.

Monies paid under redundancy have to be off set against any award.

The complainant was stated to have had an annual salary of €39,911.04. The respondent pointed to the fact that the complainant had declined to accept a position paying some €34,668. This is an argument which cannot be ignored. The loss of substantial employment benefits such as pension arising from the redundancy was significant. If the lesser position had been accepted these benefits would have continued.

Taking all matters into account a redress amount of €40,000 is awarded (reduced by the €17,964 already received by way of redundancy) giving an unfair dismissal award of €22,036.

Our Commentary:

Prior to beginning any redundancies, all other acceptable options should be investigated. The reasonableness of the employer's actions is one of the factors considered in deciding whether a dismissal by redundancy is fair or not. In the case above, the Adjudicator viewed the haste of the consultation process as supporting the complainant’s view that he was unfairly pressurised where he told that he would have to choose between a lower paying position or be made redundant in a significantly short period of time. 

Furthermore, no evidence was produced to justify the redundancy calling into question the ‘genuine nature’ of the purported redundancy and there did not appear to have been any opportunity afforded to the complainant to seek representation, nor was any appeal process outlined to him.

This case underlines the importance of fair and transparent procedures being upheld when dealing with redundancy scenarios. Furthermore, organisations should be mindful of the pressure and consequences faced by employees in a redundancy situation and should duly conduct procedures in a considered manner, which is not rushed.

International Equal Pay Day - 18 September

International Equal Pay Day was celebrated on 18 September and represents the longstanding efforts towards the achievement of equal pay for work of equal value building on the United Nations commitment to human rights and against all forms of discrimination, including discrimination against women and girls. And with the gender pay gap estimated at around 20 per cent globally, gender equality continues to be a source of challenge. 

While we await the transposition of the EU Directive on Pay Transparency, organisations in the nonprofit sector should consider what steps can be taken to promote and support pay transparency. The aim of the Directive is to establish pay transparency standards that empower workers to claim their right to equal pay, this will impact an employer’s ability to ask prospective employees about their pay history, including their existing salary.

One of the key provisions of the Directive is that employers will be obliged to provide information about the initial pay levels or pay range in job advertisements or before interview stage. In order to provide this information organisations will need to ensure they are benchmarking all roles in line with market data so that all vacancies are competitive and reflect the level of responsibility and skills/ experience necessary to perform the role. A number of organisations are considering the development of remuneration frameworks that standardise pay ranges based on levels of skills, experience, accountability etc. so that groups of roles are banded together within certain salary ranges. 

Until the implementation of the legislation organisations can ensure positive actions and initiatives are taken now to support equal pay and guidance is available through the Code of Practice on Equal Pay.

The Code serves as a practical guidance to organisations, employees, and trade unions on the right to equal pay.  It seeks to promote the development and implementation of procedures that establish workplaces where employees receive equal pay for like work regardless of contract type.  It also serves as a guidance on how to eliminate pay inequality and sets out procedures on how to resolve pay disputes.  

Low Pay Commission expected to recommend increase to National Minimum wage

The Low Pay Commission is expected to recommend a 12% increase to the National Minimum Wage for the upcoming year. While this increase would have to be supported by the Government it is expected to be supported and would result in the current Minimum Wage rising from €11.30 to €12.70 per hour.

The Government previously announced their intention to introduce a new national living wage to replace the national minimum wage by 2026 and set out that this will be set at 60% of the hourly median wage and phased in over a four-year period. The Government’s intention is to incrementally implement the living wage on a phase-by-phase basis between now and 2026 when it will become mandatory for all employers to comply. Until then, the living wage will be revised annually as a benchmark for employers.

If the recommendations from the Low Pay Commission are accepted and the new minimum wage implemented this would have additional cost implications for organisations in the nonprofit sector, who are advised to budget and plan accordingly.

If your organisation requires support, advice or guidance on developing and implementing policies and procedures, employee relations support or details of the supports provided under our Partnership Programme contact our expert-led team at Adare Human Resource Management.

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