1. Introduction

The interaction between probationary periods and the statutory notice framework has been clarified by recent WRC decisions. In Gourley v Mason Hayes & Curran LLP the WRC considered whether a probationary employee with thirteen weeks’ service was entitled to statutory notice.

This article considers the threshold for statutory notice during probation, the interaction with contractual notice provisions, and the practical implications for employers operating probationary periods.

2. Legislation and Case Law

Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 provides that statutory notice is payable where the employee has been in continuous service of the employer for at least thirteen weeks.

The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. 686 of 2022) introduced new restrictions on probationary periods. Probationary periods are now generally limited to six months and may only be extended in defined circumstances.

Where the contract provides for a probationary period with shorter notice during probation, the contractual notice will apply subject to the statutory minimum. The statutory minimum cannot be contracted out of: contractual notice that is shorter than the statutory minimum is unenforceable to that extent.

Section 6 of the Unfair Dismissals Acts 1977 to 2015 generally requires twelve months’ service before unfair dismissal protection arises, although there are exceptions for dismissals on protected disclosure grounds, pregnancy and certain other protected grounds. 

3. Decision

The WRC found that the complainant had completed thirteen weeks’ continuous service and was therefore entitled to one week’s statutory notice notwithstanding the probationary status.

The employer had relied on contractual notice provisions of shorter duration, which were held to be unenforceable to the extent that they conflicted with the statutory minimum.

Compensation under Section 11 of the 1973 Act reflected the value of one week’s pay.

4. Takeaway

Employers terminating during probation should observe the statutory notice requirement once thirteen weeks’ service has been completed. Probation-specific notice provisions may apply only to the extent they exceed the statutory minimum.

Employees dismissed near the end of a probationary period should check their length of service against the thirteen-week threshold. Statutory notice may be available even where unfair dismissal protection has not yet accrued.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie