Probation period in Ireland: the 6-month cap and your rights

A probation period is the opening stretch of a job during which the employer assesses whether you suit the role and, usually, during which the contract allows a shorter notice period and a simpler dismissal process. Until 2022 there was no legal limit on how long it could run. There is now. This guide covers the cap, what must be in writing, extensions, notice, the rights that apply regardless of probation, and what happens if you are let go before it ends.

The cap: 6 months, or 12 exceptionally

The European Union (Transparent and Predictable Working Conditions) Regulations 2022, which amended the Terms of Employment (Information) Act 1994, limit a probationary period in the private sector to 6 months. A longer period, up to a ceiling of 12 months, is allowed only exceptionally, where it is in your interest or is justified by the nature of the employment. The Regulations do not spell out what "exceptional" means, so a 12-month probation needs a reason the employer can explain, not a default setting in the contract template.

Two further rules sit alongside the cap:

• Fixed-term contracts. Probation in a fixed-term contract must be proportionate to its length. A 6-month probation in a 9-month contract is the kind of term that may not comply.
• Renewed contracts. Where a fixed-term contract is renewed for the same job and duties, the employer should not impose a fresh probation.

The cap applies to private-sector employment. Public and civil service probation is set separately by statute and circular; the civil service, for example, uses a probation of one year. See civil and public service for that position.

What must be in writing

The duration and conditions of any probationary period are one of the core terms that must be given to you in writing within 5 days of starting. "Conditions" means things like how and when your performance will be reviewed, what notice applies during probation, and whether the period can be extended and on what grounds.

If your written statement says nothing about probation, the employer will find it hard to argue later that you were on probation at all. If it says "6 months, extendable at the company's discretion", the extension wording is the part to question. The contract checker flags the probation item and the deadline that applies to it. For the full list of what must be in the statement, see contract of employment: what must be in writing.

Extending probation

An extension needs two things: a contractual basis (a clause allowing it, or your agreement at the time) and a reason that fits within the legal ceiling. In practice extensions happen because performance concerns have been raised and the employer wants more time before deciding, or because you were absent for part of the period and the employer has not had a fair chance to assess you.

Points worth knowing:

• The extension cannot take the total past 12 months in any case, and taking it past 6 months needs to be exceptional and justified.
• An extension should be told to you in writing, before the original period ends, with the new end date and the reason. An extension announced after the original probation has lapsed is weaker: on one reading you have already passed.
• Being told your probation is extended is a signal to ask for specifics. What are the concerns, what does the employer want to see, how and when will it be reviewed? A short email asking for this in writing is the kind of record that matters if things go further.
• If the concerns are about performance, the employer is in effect running an informal capability process. Performance improvement plans covers what you can expect from that.

Notice during probation

Many contracts set a shorter notice period during probation, often a week each way. That is lawful as long as it does not go below the statutory floor.

The Minimum Notice and Terms of Employment Acts 1973 to 2005 apply once you have 13 weeks' continuous service. From then, the employer must give you at least 1 week's notice (the figure for service under 2 years) and you must give at least 1 week. Before 13 weeks, the Acts do not apply and the contract alone governs notice, which is why some probation dismissals in the first three months come with little or no notice.

A contract can give more than the statutory notice, in either direction, but can never give less. Pay in lieu of notice is allowed where the contract provides for it or you agree. No notice is owed where the dismissal is for gross misconduct, though whether conduct reaches that level is a question of fact and the WRC still expects a fair procedure. The notice calculator works out what you are owed, and wrongful dismissal and notice pay covers the claim if it is not paid.

Rights that apply from day one

Probation changes the employer's ability to end the contract. It does not switch off employment rights. From your first day:

• The minimum wage applies at the rate for your age. A trial period at a lower rate is not a lawful exception.
• Working time rules apply: the 48-hour average week, 11 hours' daily rest, 24 hours' weekly rest, and breaks of 15 minutes after 4.5 hours and 30 after 6. See working hours and breaks.
• Annual leave accrues from the first day, at the greatest of the three statutory methods, which for a new starter usually means 8% of hours worked. If you leave during or at the end of probation, accrued leave not taken must be paid. See annual leave entitlement and the annual leave calculator.
• Public holidays apply. Part-time workers qualify after 40 hours in the previous 5 weeks.
• Statutory sick pay needs 13 weeks' service, so it typically starts partway through probation: 5 days a year at 70% of pay, capped at €110 a day, with a medical certificate from day one. See statutory sick pay.
• The Employment Equality Acts apply in full. Dismissal, or a failed probation, on one of the nine grounds can be challenged at the WRC with no service requirement.
• Protected disclosures, union membership and statutory leave are all protected without a service threshold.
• A written statement of terms is due within 5 days (core terms) and 1 month (the rest).

Maternity, paternity, parent's and parental leave have their own service rules for the leave itself, but the protection against dismissal for taking or asking for them applies from day one.

Dismissal during probation

Most people reading about probation are worried about this. The position is that the Unfair Dismissals Acts 1977 to 2015 require 12 months' continuous service, so a dismissal inside a 6-month probation cannot usually be challenged as an unfair dismissal. The same applies to a dismissal at 11 months in a 12-month probation.

The exceptions are the ones that apply regardless of service. No minimum service is needed where the dismissal is wholly or mainly for pregnancy, giving birth or breastfeeding; for taking or asking for maternity, adoptive, paternity, parent's, parental, carer's or force majeure leave; for trade union membership or activity; for making a protected disclosure; or for exercising a statutory right. A dismissal on one of the nine equality grounds goes under the Employment Equality Acts instead, also with no service threshold.

Separately, the WRC and the courts expect fair procedure even in probation: being told what the concern is, being given a chance to respond, and a decision that follows from the facts. Most contracts incorporate a disciplinary procedure, and the WRC Code of Practice (S.I. No. 146/2000) applies to the employer whether or not the employee has 12 months' service. A procedurally poor probation dismissal is hard to challenge at the WRC without the service, but it can matter for notice, for any equality or penalisation claim, and for the reference.

The full picture, including what to ask for in writing when a probation dismissal happens, is in dismissed on probation, and the unfair dismissal checker tells you whether any exception may apply to you.

Passing probation

Nothing in the law requires a formal confirmation that you have passed. If the period ends and nobody says anything, you have passed by default: the probation clause has expired and the ordinary terms of the contract apply, including the full notice period. It is still worth asking for confirmation in writing, because some benefits (a pension scheme, health insurance, an enhanced sick pay scheme) are written to start "on successful completion of probation" and payroll does not always notice the date.

Where this leaves you

Probation limits how easily the employer can end the contract in the first months, and that is all it limits. The length must be 6 months or less unless the employer can justify an exceptional 12, the duration and conditions must be in your 5-day statement, and every statutory right applies from day one with the notice Acts joining at 13 weeks and sick pay at 13 weeks. Run your contract through the contract checker to see whether the probation clause and the rest of the statement meet the Act, and if you are facing dismissal before the period ends, the probation dismissal guide linked above sets out the exceptions that still apply. Terms used here are explained in the glossary.