Civil Service Probation: Primacy of the Appropriate Authority and the “Factually Sustainable Satisfaction” Test – Mosepele v Minister for Justice [2025] IEHC 535

Introduction

This High Court judgment (Bradley J.) addresses a challenge to a probation reversion decision under the Civil Service Regulation Act 1956 (as amended) in the context of a promotion to Senior Legal Researcher (Assistant Principal level) within the Department of Justice. The core legal questions were:

What is the legal standard the “appropriate authority” (here, the Secretary General) must meet when terminating a probationary appointment under sections 5A and 7 of the 1956 Act?
How should a non-statutory Civil Service Appeals Board’s recommendation be treated?
What do fair procedures require where the Appeals Board issues a non-binding report shortly before the 12-month statutory cap on probation?

The Applicant, Ms. Peo Mosepele, was promoted to Senior Legal Researcher, formally appointed effective 7 June 2023, though she only commenced duties in the new area (Criminal Justice Service Delivery) on 14 August 2023. She received:

Three-month review (to 6 September 2023): Satisfactory
Six-month review (to 6 December 2023): Unsatisfactory
Nine-month/final review (to 6 March 2024): Unsatisfactory

Following those assessments, her line manager recommended reversion to her previous grade. The Applicant appealed to the non-statutory Civil Service Appeals Board, which recommended that she be confirmed in the promoted role. The Secretary General, as the appropriate authority, ultimately decided on 5 June 2024 to terminate the probationary appointment and revert her to Legal Researcher. The Applicant sought judicial review alleging, among other things, lack of factual basis, failure to be properly “satisfied” under section 7, and breaches of fair procedures.

Summary of the Judgment

The High Court refused all reliefs and upheld the Secretary General’s decision. The Court:

Reaffirmed that under sections 5A and 7 of the 1956 Act the Secretary General’s role is primary; the Appeals Board’s process is non-statutory and its recommendation is non-binding.
Applied the “satisfaction” standard: the Secretary General must be bona fide, intra vires, not unreasonable, and the decision must be factually sustainable based on the material available.
Held that the record (three, six and nine-month assessments, contemporaneous communications, HR memoranda, and the Appeals Board materials) provided a body of material capable of supporting the conclusion that performance and conduct were unsatisfactory.
Rejected fair procedures complaints, including the contention that tabling the HR memorandum prior to receipt of the Appeals Board’s decision was unlawful. The decisive point was that the Secretary General did in fact consider the Appeals Board’s recommendation before reaching the final decision.
Clarified that reasons can be gleaned from the suite of documents and context; the decision met the requirements of reason-giving in this setting.

Analysis

Precedents Cited and Their Influence

Kelly v Minister for Agriculture [2021] IESC 23; [2021] 2 IR 624:
This Supreme Court authority underscores that the ultimate decision-maker (in Kelly, Government; here, the Secretary General) is not an appellate body from an internal appeals process. Bradley J. analogised this to the non-statutory Appeals Board: the Secretary General must make her own decision and is not bound to adopt the Board’s view. This anchored the conclusion that the Secretary General could depart from the Appeals Board’s recommendation.
Whelan v Minister for Transport [2023] IEHC 586:
Simons J. described the probationary regime under the 1956 Act: probation temporarily suspends dismissal protections to allow assessment; if probation is failed, a promoted officer reverts rather than being dismissed. Whelan also framed the significance of the 12-month probation cap under the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (SI 686/2022). This timing feature justified expediting the decision before 6 June 2024 and explained the Department’s sequencing of submissions.
Used Car Importers Ireland Ltd v Minister for Finance [2020] IECA 298 (Murray J.):
Adopted the classic Tameside formulation: where a statutory power depends on facts, courts review whether those facts exist, have been considered, and the decision-maker properly directed herself. Bradley J. expressly applied this “factually sustainable evidence” lens to the Secretary General’s “satisfaction” under section 7.
State (Lynch) v Cooney [1982] IR 337 and State (Daly) v Minister for Agriculture [1987] IR 165:
These cases articulate that decisions must be bona fide, factually sustainable, not unreasonable, and supported by material capable of sustaining the decision. Bradley J. utilised this framework to test the sufficiency of the probation record.
Connelly v An Bord Pleanála [2018] IESC 31; [2021] 2 IR 752 and Mallak v Minister for Justice [2012] IESC 59:
These authorities recognise that reasons can be derived from the wider record if, taken together, they allow an affected person to ascertain the basis of the decision. Bradley J. relied on this to reject the reasons-based challenge: the reasons were ascertainable across the assessments, emails, meeting notes, appeals record, and the decision letter.
Waltham Abbey v An Bord Pleanála [2022] IESC 30:
Hogan J. emphasised proper definition of statutory powers’ ambit; Bradley J. mirrored this, stating the Secretary General had correctly defined and applied the section 7 “satisfaction” task.

Legal Reasoning

The Court identified the statutory test: under section 7, the Secretary General may terminate the probationary appointment where “satisfied” the probationer has failed to fulfil the probation conditions. Those conditions, per the Applicant’s contract and the civil service template, focused on:

Satisfactory performance, and
Satisfactory general conduct (health/sick leave was not in issue).

Key features of the Court’s application:

Non-appellate role of the Court: The Court expressly refused to resolve factual controversies (e.g., about drafting quality, initiative, communications) as if hearing an appeal. Instead, it asked whether the Secretary General’s conclusion was open on the material.
The record contained capable material: The nine-month review cited multiple examples (PowerApp pause without prior consultation; delays and political sensitivity around the UAE matter; management issues; allegedly poor judgment and interpersonal engagement; quality issues in a legal class; repeated reminders for performance management compliance). The Court acknowledged disputed emails capable of supporting both sides in places but held the totality nonetheless provided a rational basis upon which the Secretary General could be satisfied performance and conduct were unsatisfactory.
Appeals Board report treated as non-binding and imperfect: The Secretary General considered the Appeals Board’s recommendation but explained why she disagreed, noting it did not address other examples or conduct issues set out in the submission. The Court held this was lawful and consistent with Kelly (the ultimate decision isn’t an “appeal” of the Board).
Timing and the 12-month cap: The Court accepted the Department’s need to seek a decision before 6 June 2024 to avoid statutory confirmation by default. The fact that an HR memorandum issued before the Appeals Board’s report arrived did not vitiate the later decision since the Secretary General did, in fact, receive, read, and take account of the Appeals Board recommendation before deciding on 5 June 2024.
Reasons and fair procedures: The Applicant argued that documentary “proof” of specific instances was not furnished and that she had insufficient opportunity to respond. Bradley J. held that, across the probation assessments, meeting records, and email exchanges, there was adequate notice of the performance/conduct concerns and the reasons were readily ascertainable. In this probation (as distinct from disciplinary) context, that sufficed.
Staging posts and start-date issue: The Applicant had not been functioning in the new division from 7 June 2023, but the Court viewed three, six, and nine months as staging posts, with the final assessment focusing significantly on December–March. That timing architecture did not, in itself, render the process unfair.

Impact and Significance

This judgment consolidates and clarifies several important points for civil service probation management and litigation:

Primacy of the Appropriate Authority: The Secretary General’s decision is the determinative statutory act under the 1956 Act. Non-statutory bodies’ recommendations can be rejected, provided the Secretary General considers them and gives a reasoned basis (which may be gleaned from the overall record).
“Satisfaction” threshold and evidence: The Court will not re-try complaints. The question is whether a reasonable, bona fide decision-maker could be satisfied on the material that performance and/or conduct were unsatisfactory. Departments should ensure a traceable evidential pathway (assessments, notes, emails) that cumulatively demonstrate the concern and the probationer’s opportunity to engage.
Probation vs discipline: The standard of procedural formality is different. Probation is forward-looking assessment, not punishment. This judgment confirms that the fair procedures appropriate to probation can be satisfied by systematic assessments and contemporaneous communications without the full panoply of disciplinary process safeguards.
Handling non-statutory Appeals Board outcomes: Where the Appeals Board recommends confirmation, the appropriate authority may lawfully depart if it identifies gaps or disagrees on evaluation. Here the Secretary General highlighted omissions in the Board’s treatment of examples and conduct issues.
Managing the 12-month cap: The EU Regulations impose a hard ceiling on probation. Departments must time decisions to avoid automatic confirmation. This judgment shows that preparation of a submission before an Appeals Board decision is not improper if, before deciding, the appropriate authority actually considers the later Board recommendation.
Conduct as a probation criterion: The case gives prominence to “general conduct” as distinct from technical performance. Communications style, collegiality, responsiveness to instruction, and political sensitivity can be decisive.

Complex Concepts Simplified

Appropriate Authority: The person legally empowered to make the probation decision under the 1956 Act. For most Departments, this is the Secretary General. They must be “satisfied” the probationer failed to meet probation conditions before terminating the probationary appointment (leading to reversion if the person previously held an established position).
“Satisfied” under section 7: A legal standard. It does not require a court-level fact finding. It requires that the appropriate authority honestly believes, on reasonable, factually sustainable grounds, that the probation conditions (e.g., performance, conduct) were not met. Courts check that there was a sufficient evidential substrate and that the decision was not irrational or made on a wrong legal basis.
Non-statutory Appeals Board: An internal review mechanism issuing non-binding recommendations. It does not replace or constrain the statutory decision-maker. The appropriate authority may accept or reject its recommendation after due consideration.
Probation vs Disciplinary Process: Probation is a trial period to assess suitability. Reversion after a failed probation for a promoted officer is not a dismissal; it restores the prior grade. Disciplinary processes address wrongdoing or misconduct and trigger different, more formal procedural protections.
12-month cap on probation: Under the EU Transparent and Predictable Working Conditions Regulations 2022, civil service probation cannot exceed 12 months. If no decision issues by then, the employee is treated as having completed probation. This creates a hard deadline for Departments.
Reasons requirement: Decision-makers must provide reasons. However, in public law, reasons may be apparent from the overall materials (assessments, memoranda, correspondence) even if not exhaustively set out in one letter. The test is whether an affected person can readily ascertain the basis for the decision.

Key Factual Threads and How They Mattered

Three/Six/Nine-month assessments: A trajectory from initial praise (three months) to unsatisfactory assessments (six and nine months). The nine-month report particularly emphasised performance (initiative, accuracy, decision-making) and conduct (engagement with the line manager, communication).
Specific incidents relied upon: Pausing the PowerApp project without prior consultation, handling of a politically sensitive UAE-related action and delays, preliminary risk assessment discrepancies, staffing management issues and PMDS compliance reminders, and alleged deficiencies in a legal training session. While the Applicant contested many of these, their presence across the record provided sufficient material for the Secretary General’s “satisfaction.”
Applicant’s rebuttals: The Applicant furnished detailed written rebuttals (notably her 28 December 2023 email and attachments), an extensive Statement of Appeal, and pointed to supportive emails. The Court acknowledged contested facts but maintained its non-appellate stance: the decision was nonetheless open to the Secretary General on the record.
Appeals Board’s approach: The Board focused on exemplars of drafting and interactions which, in its view, did not rise to “serious errors.” The Secretary General’s response—that the Board did not address other examples or conduct—was accepted by the Court as a legitimate basis for disagreement.

Practical Implications and Guidance

Line managers should contemporaneously document concerns, meetings, and the probationer’s responses. Even where email chains are mixed, the cumulative record should expose a rational basis for conclusions.
Where a non-statutory Appeals Board is used, Departments should be prepared to explain a decision to depart from its recommendation by identifying gaps or disagreements in evaluation.
Plan the probation decision timeline backwards from the 12-month cap. Submissions may be prepared before an Appeals Board decision, but the appropriate authority must consider the Board’s recommendation before deciding.
Distinguish clearly between “performance” and “conduct” as separate probationary conditions. Address both, with examples, and explain their relevance to the role’s sensitivity and remit.
Remember that reasons can be distributed across documents; nonetheless, ensure the probationer can follow the thread—this both meets legal standards and strengthens the defensibility of decisions.

Conclusion

Mosepele v Minister for Justice is a careful, structured affirmation of long-standing principles adapted to modern civil service probation. The key holdings are:

The Secretary General’s statutory function under the 1956 Act is primary; non-statutory Appeals Board recommendations are relevant but non-binding and may be departed from with reasons.
The “satisfaction” test is met where the decision is bona fide, intra vires, not unreasonable, and factually sustainable on the record. Courts will not re-try the merits.
Fair procedures in probation are satisfied by clear staging assessments, documented communications, and an opportunity to engage; exhaustive disciplinary-style procedures are not required.
The 12-month legal cap on probation is a real and determinative deadline; timely decision-making that still accommodates consideration of a late-issued Appeals Board recommendation is lawful.
Reasons may be ascertained from the overall documentation and context, provided an affected person can readily understand the basis for the decision.

The judgment therefore confirms and clarifies the primacy and responsibilities of the appropriate authority in probation cases, the standard of review, and the way non-statutory appeal outcomes should be approached. It offers concrete operational guidance for Departments and calibrates fair procedures to the distinctive nature of probation decisions. The application for judicial review was refused, and reversion to the previous grade was upheld.