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90 Day Trial Period - Employers Are Still Getting It Wrong

Published 14 Feb 2013

In order to be effectual, a 90 Day Trial Period must be provided at the time of making, and as part of, the initial offer of employment. The Employer also needs to provide the prospective Employee a written agreement which must include the 90 Day Trial clause if the Employer wishes to have a 90 Day Trial Period.

We recommend having the prospective Employee sign an acknowledgement letter for the receipt of the employment agreement when it is presented to him or her. The Employer needs to give the prospective Employee a sufficiently reasonable time to consider the terms of the agreement. The Employer must also point out to the prospective Employee the right to seek independent advice, and to bargain over the terms of the agreement.

The 90 Trial Period clause needs to state that it applies from the commencement date of the prospective Employee's employment, that during the Trial Period the Employer may dismiss the prospective Employee, and that if the prospective Employee is dismissed they are not entitled to bring a personal grievance or other legal proceedings relating to the dismissal. It may also state the notice period to be given upon termination via the operation of the 90 Day Trial Period clause.

The agreement must be agreed to and signed by both parties BEFORE the prospective Employee commences his or her employment in order for the 90 Day Trial Period to have effect.

Care should be taken to comply with any contractual obligations, such as training and/or performance appraisals, before giving notice of termination. In addition, the statutory duty to deal in good faith applies during Trial Periods, requiring an employer to be responsive and communicative. This includes in relation to any shortcomings an Employee displays.

In the event of termination, the Employee, who is subject to a Trial Period, is still entitled to his or her contractual notice period (or reasonable notice if none is stipulated in the clause). In other words, notice must be more than simple advice of dismissal. The actual date of termination need not fall within the Trial Period, provided that notice of termination does. Further, in a dismissal situation, if the employee asks for an explanation, the Employer should provide reasons for dismissal.

Please note that this is not an exhaustive list of what is required in order to have an enforceable 90 Day Trial Period arrangement.  For more information please refer to our eBook How to Employ Staff. This publication is in the Library section of the Employers Toolbox for ESP members.

ESP members can access our standard employment agreements in the Employers Toolbox which contain a 90 Day Trial Period. We recommend that you contact us on 0800 15 8000 before implementing a 90 day Trial Period.