Can the 90 day trial trip you up?
A common theme this month in regard to client queries is around the 90 Day Trial period. All Employers with 19 or fewer employees can employ on the 90 day trial without the risk of the new employee taking a personal grievance (PG) for unjustified dismissal (however they may take a PG on other grounds). Sounds easy? Hmm, case law is making it more difficult and you need to add extra steps for the trial to be valid.
What do you do? …You have found your superstar and you want to hire them…
Verbally congratulate them and outline the remuneration package, start date, normal hours and advise that your agreement will have a 90 day trial
Follow up your verbal offer with an email, text or offer letter confirming the details discussed
Remember the trial period is 90 calendar days
When you are preparing the Employment Agreement it is important that you avoid rushing the process to get them to start quickly!
The 90 day trial clause must be in the agreement – with the start and end dates, check with People Passion that you have a valid trial period clause
The employment agreement must have a valid notice period
Your new superstar must have a reasonable opportunity to review and seek advice on the proposed agreement before signing – this is ideally at least 3 to 5 working days
The Agreement must be signed before they start on their first day
Remember to record their 90 days dates in your calendar – we recommend setting a diary note for their 30th, 60th, 80th and 90th day
Note: If you miss any of the steps above, then the trial period is likely deemed invalid.
Important points to remember:
If you are their previous employer or they have worked as a temp for you in the past you are unable to use the trial period – no if’s, buts, or maybe’s!
If you have taken over ownership of a business you can only put employees on a 90 day trial if their holiday pay has been paid out by the previous owner. If this is the case, make sure you have followed the above steps thoroughly
If your new employee isn’t turning out to be the superstar you hoped and you need to dismiss, double check the following before proceeding with dismissal under the 90 days:
Is the 90 day trial clause valid
Dismissal must be on notice and given within the trial period
Have you acted in good faith as an employer?
Have you been proactive and constructive in your discussions, documenting your conversations?
Have you set them up for success, with appropriate onboarding, support and regular check ins?
Did you complete a review at 60 days?
If you have ticked the points above then you can proceed…
Be careful with the wording you use – be wise and considerate
It is natural for human beings to ask questions and ideally the dismissal shouldn't come as a surprise (no formal process required informal discussions are okay)
Notice period, as per the agreement. This can be worked out or the Employee can be placed on Garden Leave during the notice period by agreement, however they can look for alternative work during this time
Legally there isn’t a reason to provide the Employee with a termination letter, however it is a good idea to outline final pay details in writing
If in doubt phone People Passion to check your wording or thoughts at any stage – the earlier the better!
If your new superstar has turned out to be a rock star and their 90 days is complete - what happens?
Congratulate them – a thank you and acknowledgment goes a long way
You can give them a letter/email if you choose to
Check diary notes for birthdays, annual review and any other key dates
Celebrate success and retain your new super star!
We have conveniently put together a 90 day checklist for you to remember all the important steps above Click here to download
Anna McClean
People Partner