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12:06 Tuesday 21 May 2024

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Trial periods for candidates


The below refers to pre employment trial periods and not actual probationary periods as are often inserted into employment contracts.

Trial periods are often used to test if someone should be hired.

If an employer goes through the interview process with a potential employee, and invites them for a trial with the business, i.e. a two week trial “on the floor” or “in the kitchen” if this business so be a hotel or restaurant etc, to see how the employee gets on/to evaluate the employee’s suitability to the employer’s business, an employer must specify the length of this trial beforehand to the employee.

If on completion of this trial, the employee is kept on (the employer does not notify the employee that they have had an unsuccessful trial) then the employee is deemed to be in employment with the business.

Under all current Irish Employment Law, any person carrying on regular work for a business in return for payment is deemed to be employed by that business and as such is entitled to all the employment rights that govern their particular situation as defined by law.

Please be aware, employers can not call someone for a two week trial and then after two months of the employee working, notify the employee that they did not pass the trial and must leave as by doing this the employer will leave themselves open to a claim by the employee.

An employee is entitled to assume they have “got the job” if they are kept on after the stated trial period.

Employers – Why is it important to think about trial periods when dealing with staff sent to you by recruitment agencies?

If you, the employer, interview a candidate sent to you by a recruitment agency, and you call that candidate in for a two week trial, and after that two weeks has passed, you do not tell the candidate that they are unsuitable, you will (under law in relation to the employee) be deemed to be employing them if you keep them on.

And as, thus, will have received the agreed service you sought from the recruitment agency, i.e. the filling of a position.

Therefore, besides your obligations to the employee, you will have hired the candidate the recruitment agency sent you and therefore, based on the terms and conditions agreed by you with the recruitment agency prior to interviewing the client, you will be liable to pay the recruitment fee.

Put simply, a two week trial is a two week trial, and after a month you can not, under law (in relation to your rights to the employee) claim the employee is still on trial unless that employee has been told he in being put on further evaluation. If the trial was two weeks, and over a month has passed you can not dismiss them based on them not passing the trial as by not notifying the employee after the agreed trail period, i.e. two weeks in this example, they were unsuitable and thus keeping them on, you are employing them, and no longer vetting them.

The employee is entitled to know before a trail that a) it is a trial, b) the length of the trial, and then immediately after the pre agreed trial length, if it were successful or not.

Remember – whether written or not ALL employees have a contract under Irish Law. And rights. Whether part time or full time.

Remember – you are deemed to be employing someone if they are carrying on regular work for you and receiving payment. Whether the payment is in the form of a payslip, cash or any other form or whether you have registered them on the books or not. See Government definition of employee/being employed here.

During an agreed trial period the candidate is not considered to be employed, but note, the trial period is the period notified to the candidate before he starts it, and automatically ends when this period naturally lapses. You are deemed to being employing them after this if keeping them on in regular employment in receipt of a wage.

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