90 day trial period, are you getting it right?

The 90 day trial period was first introduced in 2009 for employers with less than 20 employees.  In 2011 the trial period provision was extended to all employers regardless of size.

The purpose of the 90 day trial period was to enable employers to take more risks on new hires through being able to assess suitability and how they are meeting basic employment expectations, fit with the company and integration into role and the team and to end employment if the conditions were not being met within the first 90 days.  The employee is then in this case prevented from raising a personal grievance, or taking legal proceedings in respect of the dismissal.

Whilst a 90 day trial period can be a very useful tool for employers, after 8 years we are still seeing employers getting tripped up in its application.  Some of the key requirements to help get it right are:

  • It can only be used for new employees, someone who has never been employed by the employing entity in any capacity.
  • The 90 day trial period must be included in the employees Individual Employment Agreement which must specify that it applies from commencement date and outline the terms and impact of the trial period.
  • The Individual Employment Agreement must be provided in advance of the employee starting work, the employee must have had sufficient time to seek independent advice if they had wished to do so and the agreement must be signed and returned before employment actually starts. Best practice is to have the signed agreement in advance of the employees first day.

Employer obligations are to act in good faith which amongst other things means being responsive and communicative.  At a minimum, the employee needs to know what is expected of them and be told along the way if they are falling short of expectations.

If you are looking to terminate a new employee under their 90-day trial period initial checks include;

  • Checking that the employment agreement meets the requirements
  • Checking if discussion/s have been held with the employee about their performance in role and that they have had sufficient opportunity to develop and improve as needed and appropriate
  • Checking the length of the notice period and whether this could be covered in the 90 days along with time in employment

If you would like your trial period provisions reviewed, or want advice on terminating a staff member under their 90 day trial period provisions please contact a member of the Grow HR Team.