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Differences Between Probationary Periods & 90 Day Trial Periods

Published 01 Aug 2010

While the case heard by Chief Judge GL Colgan went against the employer our reading of the causes are simple. The employer was not entitled to hold a 90 Day Trial Period:
  • The employee did in fact have full coverage of the Acts by virtue of the fact she was an employee (that is - an existing employee).
  • When the employer offered the candidate the job and she accepted the position then the candidate immediately had employee status.
  • The employer failed to negotiate the 90 Day Trial Period with the employee and although she signed the Employment Agreement after becoming employed she was unaware of the Trial Period when she accepted the position and became an employee.
  • The employment agreement was offered to the employee after being hired.
What Should Have Happened?
The employer was bound by best practice to negotiate the employment agreement (and particularly the 90 Day Trial Period) and have it signed off prior to offering her the job. If you are wondering what a reasonable period of time is between the employee becoming an employee or starting work and the employer then offering an employment agreement is – it’s too late. Employers should offer the Employment Agreement and get the terms and conditions agreed to and signed off before offering the candidate the position. The moment it is accepted the candidate becomes an employee – employment agreement or no employment agreement.

Employers cannot impose a Trial Period on an existing employee and comply.

It continues to be a trap to employ anyone without an employment agreement in place.

Do not dismiss anyone without talking to us first (0800 15 8000).