Managing the Probationary Period

A new employee joining an organisation is often an overlooked Responsibility. When someone commences work certain things should be done to ensure that the employment relationship begins, and continues, on a footing that yields mutual benefits for both the employer and employee.

It is always wise to have a probationary period as it provides an opportunity to judge whether the person has the skills to do the job and also to see if they will fit in with other members of staff and the culture of the organisation. Normally a probationary period is 3-6 months, which can be extended but shouldn't go beyond 11 months.

At this stage there are a number of important legal obligations that are an employer's responsibility to discharge. This involves giving the employee a copy of their main terms and conditions of employment. Disciplinary and Grievance procedures should be described and supplied to the employee. It is never sufficient to hand employees these documents and expect them to read and or understand them. An induction programme checklist should be provided and employees should sign a document confirming that they have read and understood the training. While this can take some time it is worth the investment. The employee knows exactly what is required of them and it eliminates the excuse that "I didn't know that or No one told me".

It is advisable to keep information contained in the terms and conditions of employment or contract of employment down to the statutory minimum and have as much information as possible contained in the employee handbook. The reason for this is that the handbook only requires consultation if you wish to change it, whereas the terms and conditions or contract requires that both parties agree to the change.

While you hope the employee's appointment is a success, it is possible that it won't be. Some employers operate on the basis of "one strike and you're out". However, it is always important to give the person an opportunity to improve as the time and money invested in them can be considerable. It is better for both to get the person on track rather than start again.

Finally, it is important to keep in contact with the new starter. Show them that their work is being noted. An excellent technique for building morale can be as simple as saying "Good Job" when it's deserved. You should ensure that if a person is not working out that it needs to be dealt with during the probationary period. There is an automatic assumption that if nothing is said that the employee must have passed their probationary period.

Case 1 - MBNA to Pay €56,315 for Pregnancy Discrimination and Victimisation

The complainant worked in the customer care section of MBNA. She became pregnant and while on maternity leave, met with her manager to discuss applying for a promotion which had arisen. The manager discouraged her from applying for the promotion and told her a person with a degree was required, although this was not a requirement in the job specification. The complainant withdrew her application, but later found that the successful person did not hold a degree.

On return to work, the complainant found that her manager (although giving her good assessments in monthly one to one meetings) was not putting her forward for promotion or a pay rise. She complained numerous times, but he fobbed her off with promises that the pay rise/promotion would be given soon. On return to work the complainant was assigned to work in the payroll section at the same grade, although she had clearly stated that she was not happy with a lateral move. She arrived at work to find she had no desk, no phone and no real work. She complained but the situation continued for a number of weeks. She was again promised a pay review within six months but this did not happen.

When she had still not been promoted she escalated the matter. Various meetings with her manager, his supervisor and the complainant failed to resolve the issues and the complainant remained in her original position. Her complaints were not taken seriously and she was told the issue was a miscommunication.
In March 2005 the complainant announced that she was pregnant. The following month her head of department told her that her appraisal had been refused because of her attitude. The complainant was upset and left work with a stress related illness. After her manager left the company, the complainant met with the head of department and HR and claimed that she had been treated unfairly because of her pregnancy.

The complainant did not subsequently receive a promotion/pay rise. Her complaint was investigated by the company who found that she had been mismanaged, but not that she had been discriminated against because of her pregnancies. A complaint was lodged with the Equality Tribunal.

In March 2007 the complaint was informed that she was to be made redundant from 31 May, 2007. She claimed that the company made no real efforts to redeploy her. She was subsequently asked to sign a redundancy agreement which would wave away her rights to make a complaint under the Employment Equality Acts. As the complainant had already lodged a complaint under the Acts, she refused to sign the agreement and was paid a reduced redundancy package.

The Equality Officer found that the complainant had been discriminated against because of her pregnancies and that she had been victimised. He awarded her €17,000 in compensation for the discrimination, €33,000 (equivalent to one year's salary) for victimisation and adverse treatment and €6,315.84 being the difference between the basic and enhanced redundancy package. The total amount of the award was therefore €56, 315.84

Case 2 - A person with a hearing disability has been awarded €8,000 by the Equality Tribunal, after being subjected to less favourable treatment on the ground of his disability.

The person had responded to an advert for a position as a part-time graphic designer. The employer advertising the position had declined his request for a deferral of the interview to allow him to secure the services of an interpreter.

A subsequent request from the claimant for permission to do the interview with the aid of a computer was also denied. The Tribunal ruled that the claimant was discriminated against on the disability ground when the request for a deferral was refused.

The respondent was also adjudged to have failed to provide reasonable accommodation within the terms of section 16 of the Employment Equality Acts, "when they failed to consider, or provide the opportunity to undertake the interview with the aid of a computer". Background: In January 2006, the claimant saw an advert inviting applications for the position of graphic designer. He lodged an application. He saw a call coming in to his phone and texted the caller requesting that he text him with the content of the message. This the caller did, indicating that he was requested to attend for interview the next day.

The claimant contacted the Cork Deaf Society, which attempted to organise an interpreter for the interview. As an interpreter was not available, the Society rep indicated that the claimant would not be able to attend. Instead, it was suggested that the interview could be done by computer. He was told that this was not possible, as neither the interviewer, nor his brother, were computer literate. The interview slot was reassigned to another applicant. Determination:The Equality Officer, declared herself satisfied that "the respondent's refusal constitutes less favourable treatment when a reasonable deferral would have allowed the complainant to take part in the interview and have a real opportunity to access the employment".

Referring to the decision to refuse the claimant a computer for the interview, the Tribunal had this to say: "The respondent cannot rely on the argument that such a facility would have created a disproportionate burden for them. The computer communication could have been as basic or elaborate as they chose ... Neither could ensuring the availability of a person with typing skills for the duration of the interview be taken as creating a disproportionate burden on the respondent." (DEC-E2008-068 - A Complainant v An Employer).

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