All employers can now use 90 day trial periods

The government passed legislation in December last year that means all employers can use 90-day trial periods for new employees, regardless of how many employees they have (previously trial periods were only available to employers with 19 or fewer employees).  

90 day trial periods allow employers to dismiss employees within the first 90 days of their start date without needing to provide a reason to the employee. For a trial period to be valid, it must meet the following requirements: 

• The employee must be new to that business and not have worked for that employer before.
• The details of the 90 day trial period must be set out in writing in the employment agreement, which must state:
• the employee will be on a trial period from the very start of their employment;
• how long the trial period will be (the trial can be for less than 90 days);
• during the trial period, the employer can dismiss the employee; and
• the employee can't bring a personal grievance or other legal proceedings about their dismissal.
• The trial period must be negotiated in good faith. The employee has the right to seek independent advice and should not be pressured to sign the employment agreement on the spot.
• The employment agreement must specify the notice period that will apply during the trial period (this can be shorter than the standard notice period)
• The employee must sign the employment agreement containing a trial period clause before starting work in any capacity.

Failure to follow these steps will mean that the trial period will be invalid and the employee will continue to be employed, or if they were dismissed, they could raise a personal grievance. 

While an employee cannot raise a personal grievance for unjustified dismissal if dismissed under a valid trial period, the employee can still raise a personal grievance on the grounds of unjustified disadvantage, sexual or racial harassment, or discrimination.  

If you decide to include a 90 day trial period in any new employees’ employment agreements, we recommend getting advice before doing so. We also recommend meeting with your employees regularly during any trial period so they know how they are tracking - this means that if you decide to terminate their employment, it won’t come out of the blue. While employers don’t have to give a reason for ending someone’s employment during the trial period, acting in good faith means you should advise the employee why their employment is terminated.

If you want to keep on the new employee, don’t forget to let them know! 

No more Fair Pay Legislation

The Fair Pay Act has been repealed with effect from December 2023.  This framework was still in its early stages and no Fair Pay Agreements had actually been negotiated so this change will not affect most employers.