When can an employer implement a 90-day trial period for an employee?

The 90-day trial period is a tool that an employer can use to protect themselves from personal grievance claims for unjustified dismissal being brought to the Employment Relations Authority by employees.

A 90-day trial period can be utilised by employers with less than 20 employees but only if the employee in question has never worked for the employer before.

For a trial period to be valid:

•          It must be agreed upon in the employment agreement before the employee begins employment;
•          There must be a valid notice period in the employment contract; and
•          It must be agreed upon in good faith.

The employment agreement must also include provisions that state:

•          The employee will be on a trial for a set period of no more than 90 days. The specific time period must              be stated;
•          The notice period required after notice of dismissal is given;
•          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 Employment Relations Authority has however recently decided a case in which a trial period was contested, as the employee had signed the employment agreement after commencing work for the employer.

In this case, the Authority decided that there was evidence that prior to the commencement of work for the employer, the employee had expressed her acceptance of all the essential terms of the employment agreement.

The Authority decided that this was sufficient to render the trial period enforceable because the employee clearly intended to sign the agreement prior to commencing employment. The employee’s claim of unjustified dismissal was dismissed.

This decision is a significant departure from the strict approach that only allows a trial period to be enforceable if the employment agreement is signed by both parties before the employee begins working for the employer.

For safety, and to avoid any argument it is recommended that the agreement is fully signed by both the employee and employer before the employee commences work. 

If there is confusion around how a trial period works, or how to properly introduce a trial period into your employment agreement, it is wise to seek advice from a professional in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Gianna Menzies and Mathew Binnie