Changing Terms

Maximum Duration of Probation

Where an employee has entered into a contract of employment with an employer which provides for a probationary period, such period shall not exceed 6 months. The probationary period of a public servant shall not exceed 12 months.

The probationary period may, on an exceptional basis, be longer where such a longer period does not exceed 12 months and would be in the interest of the employee.

Where, in accordance with a family or sick leave provisions, an employee is absent from work during the probationary period, such period shall be extended by the employer for the duration of the employee’s absence.

The  leave provisions are certain parts of the

• Maternity Protection Act
•  Adoptive Leave Act
• Parental Leave Act 1998 ;
• Carer’s Leave Act 2001;
• Paternity Leave and Benefit Act 2016 ;
• Parent’s Leave and Benefit Act 2019;
• Sick Leave Act
•  any other statutory provision providing that probation shall stand suspended during an employee’s absence from work, and be completed by the employee on his or her return from work after such absence.

Transition to another Form

An employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

An employee may, once in any 12 month period, request a form of employment. An employer shall provide a reasoned written reply to an employee within one month of the request by the employee.

An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.

The right does not apply to seafarers or sea fishermen.

Mandatory training

Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall –

• be provided to the employee free of cost,
•  count as working time, and
• where possible, take place during working hours.

Non-Application

Where a collective agreement approved by the Labour Court or registered deals with the above matters, the terms of that agreement take effect in priority to the above-mentioned provisions

The above provisions and rights do not apply to –

• a member of the judiciary
• a retained fire fighter,
• a person who is in the service of the State as a member of the Permanent Defence Force, or
• a member of the Garda Síochána.

A ‘retained fire fighter’ means a person employed by a fire authority ( on a part-time basis and on the basis of payment by the authority to him or her of a retaining fee as well as fees for performing, as required by the authority, any functions of a fire fighter.

Variation of  Terms

It is very common for the terms of the contract to change over time. Contract law requires the consent (at least notionally) of both parties to the terms of any change.

The purported unilateral change in terms may be a breach of contract and may amount to constructive dismissal. However, the employee should not resign without going through appropriate consultations and discussion,as the courts and tribunals rarely uphold constructive dismissal claims where one party takes preemptive action.

New work practices or proposals may emerge and effectively be accepted by employers and employees, by being acted on and implemented without objection. The original written or other contract is varied by additional or substituted terms that are effected verbally or by conduct.

Redundancy and Variation

If the employer’s requirements change over time. If the employee refuses to adapt or change his or her working conditions, then in some cases, a circumstance of redundancy may arise. See the sections on redundancy.

An employee may lose an entitlement that would otherwise arise to a redundancy payment if his or her employer makes a written offer to re-engage the employee under a new contract of employment within a period which he or she unreasonably refuses, where the offer constitutes suitable employment in relation to the employee.

Where the employee has been offered suitable alternative employment and has carried out for a period of fewer than four weeks the duties of that employment before refusing the offer, the temporary acceptance does not in itself constitute an unreasonable refusal for this purpose.

Changes in Reference Conditions

Employment terms may refer to another document, such as a particular policy or the terms of a pension or other benefits scheme as it exists or is varied from time to time, perhaps at the discretion of the employer or another. The employee may usually avail of the scheme or terms as they exist from time to time but have no right to object to changes.

Employers usually have a range of employment policies which may be amended from time to time. Changing circumstances and legislation require that there is flexibility to adapt and amend policies.

There may be a pension scheme or share option scheme. Such schemes generally contain provisions whereby they may be amended within certain parameters. There are significant statutory rights attaching to pension schemes which protect members.

Generally, the employer retains the freedom provided for in the employment contract and policy or scheme documents to change and amend the scheme.  Notice of the change may be required.  The employee may be able to require in some cases, that the employer’s discretion is exercised fairly and in good faith in accordance with the implied general duty of mutual good faith.