News Article

latest news in employment law

90 Day Trial Period Changes

Published 01 Mar 2012

The 90 Day Trial Period is not offering employers the protection most people expect.

Recent court decisions now obligate employers to ensure their recruitment processes enable them to prove they have acted fairly in their recruitment processes.
Employers are coming to grief by holding 90 Day Trial Periods and invoking the dismissal clauses only to find they were not entitled to hold a 90 Day Trial Period at all.
The Employment Court decisions on two cases are significant

Employers' pre-employment systems (including letters of offer) should contemplate:
  • Advise candidates a 90 Day Trial Period is in the intended agreement and while the employer wishes to include it in the terms and conditions it needs to be negotiated and agreed upon by both parties.
  • Ascertain when the 90 Day Trial Period is to start and end.
  • Any offer of employment should be subject to the terms and conditions of the intended Individual Employment Agreement being agreed to and signed off.
  • A copy of the intended employment agreement must be given to the candidate and employers should advise them in writing that:
    • they may seek independent advice about the intended agreement;
    • they are entitled to bargain;
    • and they may arrange for someone to bargain on their behalf.
  • Candidates must be given time to:
    • familiarise themselves with the intended employment agreement;
    • ask any questions;
    • arrange someone to advise them or appoint someone to bargain for them.
  • Be aware that the moment a job is offered and accepted (verbally is enough), the candidate immediately becomes an employee and the employer cannot hold a 90 Day Trial Period if it has not already been discussed, arranged and included in the intended employment agreement before the time of acceptance.
We would also advise the following:
  • If employers wish to hold a 90 Day Trial Period, employers must get their pre-employment process right and to be certain it complies with the legal process.
  • The pre-employment process should offer the candidate the above advice.
  • Employers must not offer the position to candidates before obtaining a completed employment agreement.
  • If the need to dismiss arises, employers are advised to follow the normal dismissal procedures as if there was no 90 Day Trial Period in place or they expose themselves to a significant risk.
  • If potential employers are short of time to appoint someone to a position it is well worth considering to not hold a 90 Day Trial Period – the other obligations listed above will however, still apply regardless.
Ensure you get it right when starting people on a 90 day trial period - see our special offer on recently revised How to Employ Staff book. (Free download for Employers Support Package Members)