Despite being around since 2009, the 90-day trial period still confuses, and often scares, many employers. Organisations have ended up in Employment Court over their interpretation of the rules, and more than a few have been burnt by avoiding a trial period altogether.

But don’t worry, trial periods needn’t be the stuff of HR nightmares. Our “top tips” will help put your mind at rest and make 90-day trial periods work for your organisation.

Put it in the contract

A trial period should be included in an employee’s written employment agreement. An obvious statement, we know, but worth saying nonetheless.

Make sure the contract is signed before Day One!

Before your new hire takes one step through your door, make sure their written employment agreement, complete with trial period clause, is signed by both parties – the trial period is invalid otherwise!

90 days or fewer?

The trial period doesn’t have to be 90 days – it can be shorter (but not greater!). You can vary the period depending on the type of role and how it fits the market.

We recommend using the full 90 days though, as this is a suitable period for you and the new employee to get to know each other properly.

A trial period cannot extend beyond 90 days – you either have to make the employee permanent or dismiss them.

It’s 90 calendar days

The trial period includes weekends and statutory days. So mark the end date on your calendar!

“New” employees only!

And by “new”, we mean “brand spanking new”. Delve into your company history to check all employee records as far back as your organisation has existed. If you’ve employed them previously – even for one day, ten years ago, under a different trading name – then the trial period is invalid.

90 days for everyone?

Changes have been made which means the 90-day trial period can only be used within organisations that have 19 employees or less. For any employer that has 20 or more staff, you cannot use a 90 day trail period in your employment contracts.

Be fair and act in good faith

Trial periods must be entered into by mutual agreement. Always give the employee sufficient time to consider the clause and seek advice, before they have to sign on the dotted line. And honesty is the best policy when it comes to dismissals – as hard as that can sometimes be.

Always seek legal advice!

This one’s a must – but not just for your peace of mind. Getting clauses written by a lawyer and understanding things like ‘any dismissed employee must be given the notice period outlined in the employment agreement’ can save you a massive legal headache.

If you’re a small organisation on a tight budget, the community law office is a good place to start – it’s free and extremely useful. Find your local community law office (here)

What happens when you dismiss the employee?

If at the end of the trial period you decide to dismiss the employee, as mentioned previously, the employee must be given the notice period outlined in the employment agreement.

It’s important to note, the employee can’t raise a ‘Personal Grievance’ on the grounds of unfair dismissal. They can, however, raise one if they feel they have been discriminated against or harassed.

We hope you find our “top tips” on the 90-day trial useful. Please let us know if you’d like more help: we’re always happy to be a sounding board at any time, to help point you in the right direction.

Wishing you every success.
Kirsty and Nikki

Explaining gaps in your CV
The 90-Day Trial Period (Employees)