90 Day Trial Period

The world of employment is a constantly shifting landscape, with laws and regulations changing to keep up with the demands of the modern workforce. One such development is the introduction of trial periods for new employees. However, it is important to note that not all employers are eligible to use trial periods, and not all employees are eligible to be placed on trial.

First and foremost, only employers with 19 or fewer employees (at the beginning of the day on which the employment agreement is entered into) are permitted to employ a new employee on a trial period for up to the first 90 calendar days of their employment. This is a significant restriction that prevents larger companies from using trial periods as a means of evaluating new hires.

Furthermore, an employee cannot be placed on a trial period if they have worked for the employer before. This is to ensure that employees are not subjected to repeated trial periods, and that the process is only used for new hires.

For a trial period to be considered valid, it must be agreed to in the employment agreement before the employee starts work. This is a crucial step in the process, as it ensures that the employee is aware of the trial period and has had the opportunity to seek advice and raise any issues before starting their new job. Failure to agree to the trial period before the employee starts work will render the trial period invalid, and the employee cannot be dismissed under the trial provision.

Additionally, the trial period must have a valid notice period in the employment contract, and must be agreed by the employer and employee in good faith. This means that an employee cannot be forced into being employed on a trial period, and must have the opportunity to make an informed decision about the terms of their employment.

When an employee is on a valid trial period, they are not able to bring a personal grievance for unjustified dismissal or any other legal proceedings about their dismissal, as long as the employer has given the right amount of notice to the employee. This is an important aspect of the trial period, as it ensures that the employer is able to make a decision about the employee's suitability for the role without the threat of legal action.

It's worth noting that if an employee is a union member employed on a collective employment agreement, they cannot have a trial period (in their individual terms and conditions) that is inconsistent with the collective employment agreement. For example, if the collective employment agreement states that an employee cannot be employed on a trial period, then they cannot have a trial period in their individual terms.

Employees on valid trial periods still have all minimum employment rights and responsibilities, such as health and safety, minimum pay, annual holidays, public holidays, sick and bereavement leave and equal pay. However, they will not be able to bring a personal grievance for unjustified dismissal. It's important to remember that even if an employee is on a trial period, they can still bring a personal grievance on grounds other than about their dismissal such as discrimination, sexual or racial harassment, pressure about union membership, continuity of employment under Part 6A of the Employment Relations Act 2000, if the employer does something that unjustifiably disadvantages them, if the employee starts working before the contract is signed, if the employment contract does not mention that there is a trial period, or the employment contract does not contain a notice period in case of dismissal or resignation.

If the employer decides to dismiss the employee during the trial period, they must give notice to the employee that they will be dismissed. The notice must be the amount of notice in the employment agreement. If the employer doesn’t give the employee the right amount of notice then the trial period is invalid and the employee will continue to be employed (or if they were dismissed, they could file a personal grievance for unjustified dismissal).