Probation period Ireland: the maximum is six months, with two narrow exceptions

A probationary period in an Irish contract of employment cannot exceed six months. That is section 6D(1) of the Terms of Employment (Information) Act 1994, inserted by regulation 10 of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022) with effect from 16 December 2022. Before that date there was no statutory limit at all, and twelve-month probations were routine.

The two exceptions

Section 6D(2) allows a public servant a probationary period of up to twelve months. "Public servant" has the meaning it has in Part 2 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012.

Section 6D(3) allows anyone else a longer period on an exceptional basis, and only where the longer period both:

• (a) does not exceed twelve months, and
• (b) would be in the interest of the employee.

Both limbs have to be satisfied. The second is the one that fails in practice. "We need more time to assess them" is the employer's interest. What section 6D(3)(b) contemplates is something like giving an employee who is close to the standard a further three months to reach it rather than dismissing them at six — a benefit to the employee, and one you should be able to explain in writing.

Absence extends it automatically

Section 6D(5) provides that where an employee is absent under a "specified provision" during the probationary period, the employer shall extend the period for the duration of the absence. The specified provisions are listed in section 6D(6):

• section 25(1) of the Maternity Protection Act 1994
• section 15(6) of the Adoptive Leave Act 1995
• section 14(3) of the Parental Leave Act 1998
• section 13(5) of the Carer's Leave Act 2001
• section 19(3) of the Paternity Leave and Benefit Act 2016
• section 18(3) of the Parent's Leave and Benefit Act 2019
• section 11(3) of the Sick Leave Act 2022
• and any other statutory provision under which probation is suspended during an absence and completed on return

This is an extension the employer must make, not one it may choose to make, and it is not counted against the six-month cap in the same way — the probation is suspended, not lengthened.

Fixed-term contracts follow a different rule entirely

Section 6D does not govern a fixed-term contract. Section 9A of the Protection of Employees (Fixed-Term Work) Act 2003, inserted by regulation 14 of the same 2022 Regulations, provides that where a fixed-term employee has a contract providing for a probationary period, the length of that period shall be proportionate to the expected duration of the contract and the nature of the work.

There is no number in section 9A. What it plainly excludes is a probation that runs for the whole of the contract, or most of it. A six-month probation on a nine-month contract is not proportionate on any reading.

Section 9A(2) adds the point employers most often get wrong: where the employer proposes to renew a fixed-term contract for the same functions and tasks, the renewed contract shall not be subject to a new probationary period.

It has to be in the day-5 statement

Section 3(1A)(k) requires the written statement given within five days of the employment starting to set out, where a probationary period applies, its duration and its conditions. Duration alone is not compliance. The conditions mean the review points, what notice applies during the period, and whether and how it may be extended.

Notice during probation

Statutory notice is a separate question and it does not turn on probation at all. Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 starts the employer's duty at thirteen weeks' continuous service. So an employee dismissed at week ten of a six-month probation is owed no statutory notice; one dismissed at month five is owed one week, and whatever longer period the contract gives.

Dismissal during probation is not free of risk either. The one-year qualifying period in section 2(1)(a) of the Unfair Dismissals Act 1977 does not apply to the categories those Acts protect from the first day — trade union membership or activity, pregnancy and maternity-related matters, exercising a statutory leave entitlement, and making a protected disclosure — and a discrimination claim under the Employment Equality Acts needs no service at all.

What the WRC can do about it

A contravention of section 6D is a complaint under section 7 of the 1994 Act, and section 7(2)(d) lets an adjudication officer order compensation of such amount as is just and equitable, not exceeding four weeks' remuneration. The adjudication officer may also, under section 7(2)(b)(ii), alter the statement to correct it, and the corrected statement is then deemed to have been given to the employee — which means a twelve-month probation can simply be read down to six.

Our contract of employment and statement of terms of employment both block a probationary period that section 6D does not permit, and warn where a fixed-term probation is disproportionate under section 9A.