90 Day Trial Periods Have Come to an End for Big Businesses


 The End Of The Rainbow Photo Coincidence


90 Day Trial Periods were valid for all Employers to utilise up to and including 5 May 2019. This means that if you employed someone subject to a 90 Day Trial Period prior to/or on 5 May 2019, the trial period will continue to be valid for the full 90 Days regardless of the size of your business.

As of 6 May 2019, the law changed so that Employers with 19 or more Employees are no longer able to utilise the 90 Day Trial Period to test the suitability of new Employees. This poses a real challenge for big businesses in respect of testing a new Employee’s suitability, particularly when your odds of finding the perfect staff member for your business is like winning lotto’s first division.

We see many Employers utilise the 90 Day Trial Period to test suitability, and in our experience, this has created opportunities for entry-level Employees to enter the workforce when they may not have otherwise had that opportunity given that Employers are more likely to take a chance on someone knowing they were safe-guarded by the 90 Day trial period.

So, if you employ more than 19 Employees, how can you test their suitability for employment moving forward? The answer – Probationary Periods.

Probationary Periods operate very differently to Trial Periods and there are five (5) key aspects which Employers need to be aware of when utilising Probationary Periods:

  • The Employee must be advised that their employment will be subject to a Probationary Period at the time of the offer of employment being made;
  • The probationary provision must be in writing and the Employee shall be required to sign and return the employment documentation containing this provision to the Employer, prior to commencing work on the first day for it to be binding and enforceable upon them;
  • A Probationary Period may be used for an Employee who has worked for the business previously, including an Employee who may be transferring from one role to another within the same Employer’s business;
  • A Probationary Period shall be for a period agreed in writing by the parties – generally three months, differing from the Trial Period which is 90 calendar days.

Due to the Employee being able to raise a Personal Grievance in respect to the dismissal, any Employer electing to use Probationary Periods for new Employees will need to ensure that their process is well documented and implemented. This will include: establishing clear goals and objectives (KPI’s) for the Employee to achieve/be monitored against; clear review dates during the period; notification of the consequences (i.e. warnings) that may be provided during the Probationary Period if expectations are not achieved and robust processes for evaluating and reporting on the Employee’s progress.

We would recommend that the above elements are set out within a Probationary Agreement that is signed off by both parties at the commencement of employment. If you required templates for probationary clauses or probationary agreements please contact us directly.

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