90-day trial periods now open to all employers

With effect from December 2023, all employers can now use 90-day trial periods. 

Previously, this was only available to employers with 19 or less employees. 

There are a few things you need to be aware of for a 90-day trial period to be valid in order to be free from a personal grievance for unjustified dismissal. 

Firstly, you must know that it can only be used for “new” employees. This means if you have an employee returning after many years and in a new role, you will not be able to use the trial period. It also means that an employee signing the agreement on day one of employment is unlikely to meet the test of being a new employee. 

Secondly, you must follow a fair pre-employment process that ensures that new employees are aware of the trial period, that they agree to it, and that they have been advised of their right to seek independent advice of it. You must also give them reasonable time to consider the agreement/ offer of employment. It won’t be enough to give an agreement and have them start work the next day. 

There must be a valid trial period clause in the employment agreement. It must be specific on the length of the trial period. This cannot be more than 90 days. The agreement must be clear that an employee cannot raise a personal grievance (PG) for unjustified dismissal based on the trial period. They can, however, raise a PG for other reasons such as disadvantage unrelated to the 90-day trial period. 

Employers will still need to be reasonable and work with Good Faith. Employers will need to be reasonable in supporting new staff to be successful. Employers will need to ensure that any training and development obligations have been met, and that notice is given correctly. 

Employers need to give a reason for the dismissal if asked, despite the legislation specifically stating this is not an obligation. 

To invoke the 90-day trial period safely it is worth seeking assistance.