Letting a Permit Holder Go During Probation Is Not the Same as Letting Anyone Else Go

An employer with a permit holder six weeks into the job asks the same question an employer with any new hire asks: is this working, and if not, can we end it cheaply while we still can?

For a domestic hire the answer is usually yes. Probation is the cheap exit. For a worker you brought in on an employment permit, the exit is not cheap, and three of the four things it triggers have nothing to do with employment law at all.

The Short Answer

Ending a permit holder's probation ends the basis on which they are working in the State. Under section 43(1) of the Employment Permits Act 2024 both you and the worker must notify the Minister in writing within four weeks of the termination date, and DETE then cancels the permit with effect from that date. Failing to notify is an offence for both of you.

You will not get the money back. The permit fee is not refunded once a permit has issued, and section 55 makes it an offence to recover any of the permit, recruitment or travel cost from the worker.

The twelve-month unfair dismissal threshold protects you less than you think. It does nothing at all against a race discrimination complaint, which has no service threshold and is the claim a sponsored worker is most likely to bring.

And then you start again — a Labour Market Needs Test, a fresh application, a visa, and roughly six months before anyone stands in the role. Which is why the argument we make to employers is not a legal one. It is that probation is the wrong tool for a problem that, in our experience of placing workers into Irish farms, sites and nursing homes, is usually induction, language or accommodation. Those are fixable in a fortnight. A re-hire is not fixable in six months.

What Probation Actually Is in Irish Law

Probation is not a rights-free zone with a trapdoor at the end. Since the European Union (Transparent and Predictable Working Conditions) Regulations 2022 it is a defined and capped period, and the definition sits in section 6D of the Terms of Employment (Information) Act 1994.

The rules that matter to you:

• Six months is the ceiling. Section 6D(1) provides that a probationary period shall not exceed six months. Public servants get twelve under 6D(2).
• A longer probation needs to benefit the employee. Section 6D(3) allows more than six months only on an exceptional basis, only up to twelve months, and only where the longer period "would be in the interest of the employee". Ireland did not transpose a business-convenience exception. A twelve-month probation because the role is complicated is not what the section says.
• Statutory leave pauses the clock, and you must extend it. Under 6D(5), where an employee is absent under maternity, adoptive, parental, carer's, paternity, parent's or statutory sick leave, the employer shall extend the probation by the duration of the absence. That is an obligation on you, not an option.
• Fixed-term contracts get less. Section 9A of the Protection of Employees (Fixed-Term Work) Act 2003 requires the probation to be proportionate to the expected duration of the contract, and a contract renewed for the same functions and tasks cannot carry a new probationary period.

There is also a documentation point that catches permit employers specifically. Probation duration and conditions are one of the core terms that must be given in writing within five days of starting, under section 3(1A)(k) of the 1994 Act. A permit contract drafted months earlier to satisfy DETE usually contains a probation clause; a contract that does not, or that names a period the statement contradicts, is a bad document to be relying on at the moment you use it. Our guide to the contract DETE wants to see covers the full Day 5 and one-month lists.

What the Twelve-Month Threshold Does Not Buy You

The comfort employers reach for is section 2(1)(a) of the Unfair Dismissals Act 1977, which excludes an employee with less than one year's continuous service. That is real. It is also narrower than it sounds.

The exclusion is lifted entirely where the dismissal results wholly or mainly from a day-one ground. Reading section 6(2) with subsections 2A to 2D, those include trade union membership or activity, having made a protected disclosure, pregnancy and matters connected with it, and the exercise of adoptive, paternity, parent's, parental or carer's leave — with force majeure leave, leave for medical care purposes, domestic violence leave and a flexible-working request added by the Work Life Balance and Miscellaneous Provisions Act 2023. Victimisation under section 36(2) of the National Minimum Wage Act 2000 sits outside the service requirement too.

More to the point for a sponsored hire: the Employment Equality Acts carry no service threshold at all. A permit holder dismissed at week seven cannot bring an ordinary unfair dismissal claim, but they can bring a race discrimination complaint to the WRC on day one, and nationality sits inside the race ground. That is the exposure, and it is the one probation does nothing about. We set out how those claims are actually built — and what defends them — in our guide to the Employment Equality Act and your permit holders.

Two smaller things. Statutory minimum notice starts at thirteen weeks' continuous service under section 4(1) of the Minimum Notice and Terms of Employment Act 1973 — so a week-ten exit carries none and a week-twenty exit carries one week, unless your contract says more. And the Code of Practice on Grievance and Disciplinary Procedures has no probation carve-out: it applies generally, an adjudication officer may have regard to your compliance with it under section 6(7)(b), which points to the codes of practice named in section 7(2)(d), and any worker regardless of service can refer a trade dispute under section 13 of the Industrial Relations Act 1969. You can object to that investigation in writing within three weeks, and the recommendation is not binding — but it is published.

Three Things That Fire the Day the Employment Ends

None of these have a domestic equivalent, and all three happen whether the parting is amicable or not.

The notification, within four weeks, from both of you. Section 43(1) applies when the employment "is terminated by the employer or the holder of the permit or otherwise, for whatever reason, ceases". Regulation 23 of the Employment Permits Regulations 2024 prescribes four weeks. DETE also wants a soft PDF copy of the permit, emailed to [email protected]. Under section 43(4) a person who fails to comply is guilty of an offence, and the obligation is on the permit holder and the employer separately — theirs does not discharge yours.

The permit is cancelled, not suspended. Section 43(3) requires the Minister to cancel the permit on receipt of the notification, with effect from the date of termination, and to write to both of you confirming it is no longer in force. There is nothing to reactivate if the worker comes back to you in a month.

You cannot recover a cent of it. Section 55(1) prohibits deducting from the permit holder's remuneration, or seeking to recover from them, any charge, fee or expense arising out of the permit application or renewal, out of their recruitment for that employment, or any travel expenses previously paid to them. Contravention is an offence under 55(4). A clawback clause aimed at recouping your outlay if they fail probation is not enforceable protection — it is a breach with an offence attached. Section 55(2) separately prohibits keeping any personal document belonging to them, and the section defines that to include a passport, driving licence, identity card, bank documents, qualification documents and travel documents.

For scale: the DETE fee alone for a new General Employment Permit of six to twenty-four months is €1,000, and 90% is refunded only where an application is unsuccessful. A permit that issued and was then cancelled refunds nothing. Set that beside the Labour Market Needs Test advertising, the visa, the flights and the management time, and it is a five-figure decision in most sectors. Our breakdown of what an overseas hire actually costs has the itemised version.

The Redundancy Window Does Not Apply Here

This is the assumption we most often have to correct, and it matters because getting it wrong means telling a worker something untrue about their own status.

DETE operates a concession for redundancy, and only for redundancy. A General Employment Permit holder made redundant must notify DETE on the prescribed Notification of Redundancy form within four weeks of the date of dismissal; having done so, they have up to six months from that date to find alternative employment, and the next employer's Labour Market Needs Test is waived. DETE goes further and will consider a fresh application for the same job title even if that title has since come off the eligible list.

A probation dismissal is not a redundancy. The role still exists — you are refilling it. DETE publishes no equivalent window for a dismissal, and you should not tell a departing worker they have six months, because that is not a statement you are in a position to make. Their permission to remain is a separate question from their permit, and it belongs to the Department of Justice: DETE's own guidance is explicit that an employment permit is not a residence permission. The honest thing to say is that they need to contact the immigration authorities about their status, and to say it early rather than on their last day.

The nine-month rule bites here too, from the other direction: a permit holder in their first employment in the State generally cannot move to a different employer inside nine months. Our guide to changing employer on a work permit is the canonical page for the nine-month rule, the redundancy exception and the section 43 and 55 obligations, and it is the page to send anyone who needs the detail.

What the Problem Usually Actually Is

We place workers into Irish farms, construction sites, nursing homes and kitchens, and we hear from employers at week six. The complaint is almost never that the worker cannot do the job. It is that they are slower than expected, quiet in briefings, or not picking things up the way the last hire did.

Three causes account for most of it, and none of them are performance.

Induction built for someone who already knows the place. A worker who has never seen an Irish parlour, an Irish site induction or an Irish medication round is not underperforming when they are slow in week three. They are new in a way a domestic hire with the same job title is not. Pairing them with one named person for four weeks fixes more than a warning does.

Language that works fine in the interview and not on the yard. Technical English, site slang and a strong regional accent are three different problems, and the third is the one nobody plans for. It reads as not listening. Written instructions for the first month, and asking for things back in the worker's own words, will tell you within days whether you have a comprehension problem or a competence one.

Accommodation and the first month of life admin. A worker sleeping badly, forty minutes from the site with no car, still waiting on a PPSN and being emergency-taxed, is not the same worker they will be in month three. This is the single most common thing we see mistaken for a bad hire.

None of this is an argument for keeping someone who genuinely cannot do the work. It is an argument for knowing which of the two you have before you spend six months and another five figures finding out.

If You Still Have to End It

Sometimes the answer really is that the hire is wrong. In that case, do it in an order that leaves you defensible.

1. Put the concern to them properly, in writing, and hear the answer. The Code of Practice applies. A meeting where the outcome was decided beforehand is the fact pattern that turns a defensible decision into a WRC complaint.
2. Check the same standard was applied to everyone. If two people made the same mistake and only the permit holder is at a probation meeting, that comparison is the whole of a race discrimination case.
3. Confirm the probation is actually still running. Six-month cap, and extended by any statutory leave absence. A "probation" dismissal after probation has expired is just a dismissal.
4. Give the contractual or statutory notice, whichever is greater. Thirteen weeks' service is the statutory trigger; your contract may start earlier.
5. Notify DETE within four weeks with the PDF of the permit, and tell the worker they must do the same. Then tell them plainly to contact immigration about their permission to remain.

And do not write a clawback into the next contract to stop this happening again. Section 55 is why that does not work.

How CA Recruitment Helps

We are a Filipino-owned agency based in Ireland, and we manage the full DETE permit process for Irish employers — eligibility and occupation-code check, Labour Market Needs Test, application, visa and travel.

The part that is relevant here is what happens after arrival. We stay involved through the first months, because the employers who ring us at week six usually have a fixable problem and no easy way to tell. We will tell you honestly which one you have, and if the answer is that the hire is genuinely wrong, we will say that too.

Our placements carry a 90-day guarantee on our own recruitment fee: if the worker leaves, or is dismissed for gross misconduct, within the first 90 days, we cover our fee for the replacement. It is worth being straight about the limits. It does not cover a probation dismissal for performance, and it does not cover the DETE permit fee, the visa or travel costs, which are paid to third parties. An agency promising to make you whole "for any reason" is overpromising.

If you are weighing up ending someone's probation, the cheapest call you will make this month is the one before you do it. Book a free consultation or message us on WhatsApp, and we will go through the specific position — permit type, service length, what the paperwork actually says — before anything is decided.

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