Despite being around since 2009, trial periods still confuse many employers, particularly as the rules around who is entitled to use them has changed. 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.

In December 2023, changes were again made to employment legislation regarding trial periods. But don’t worry, these needn’t be the stuff of HR nightmares. Our top tips will help put your mind at rest and make trial periods work for your organisation.

What’s changed?

Previously a trial period could only be used for smaller-sized organisations with 19 employees or less; the new changes now allow trial periods to be used by organisations of any size.

Put it in the contract

If you intend to include a trial period as a condition of employment, it must be included in an employee’s written employment agreement.

Make sure the contract is signed before Day One!

Before your new hire takes one step through your door, make sure they have returned a copy of their employment agreement that has been signed by both parties – the trial period is invalid otherwise!

90 days or fewer?

The trial period doesn’t have to be 90 days – you can make it shorter if you wish (but not any longer!).

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.

It’s 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.

Trial periods for everyone?

A trial period is there to benefit any organisation, regardless of its size. Just consider the role you’re using it for – a trial period may not be appropriate for your new CEO role, for example.

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 trial periods 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

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