Ninety-day trial periods have been back for a few months now, after the Government made good on this key election promise on 23 December 2023. Previously only available for employers with fewer than 20 employees, the provision has been extended and 90-day trial periods now apply to all employers.

While some businesses are embracing their return, it’s important to know the requirements around entering, and then terminating under, a trial period. What are trial period obligations for both employers and employees?

Ensure the correct clause is in the employment agreement

When using trial periods, employers need to ensure that they use the correct clause in the employment agreement, advise the employee that their agreement includes a trial period, make sure they have given the employee a reasonable opportunity to seek independent advice and ensured the employee has signed and returned the agreement no later than a day before they start employment.

Give the correct termination period of notice

If terminating under a trial period, the employer must give the period of notice in the trial period clause (not terminate without notice for serious misconduct) on no later than the 90th day, even if the notice period continues beyond the 90 days. An employer can only pay in lieu of notice if they are able to do so under the agreement. Employees do not have to provide written reasons for the dismissal but, if the employee asks for reasons while they are still an employee, the employer must tell them in line with their duty of good faith (and must not mislead or deceive the employee).

Disadvantage personal grievance claims still apply

Although employees subject to trial period cannot challenge the dismissal, they can still raise disadvantage personal grievance claims (for other reasons such as unjustified actions not relating to the dismissal or sexual harassment) and discrimination and breach of contract claims.

If you have any questions about 90-day trial periods and the impact on your company or you are considering terminating the employment of an employee on a trial period, get in touch with our employment law specialists.