Posted on April 12, 2024
As you will have heard, 90 day trial periods are back for employers with 20 or more employees.
With unemployment increasing, this may be less useful – the pool of qualified, experienced and proven workers looking for work is greater. However, in certain industries, in certain roles and for certain candidates, the additional flexibility to test the waters will still be welcome.
Our “what not to do” guide below, will help you to navigate through the hidden dangers.
Offer stage
DO NOT:
- Run an unpaid trial before making an offer, unless you have expert legal advice first.
- Make an offer of employment by phone, text, or email. While this can be tempting, once an offer is made and accepted, it’s too late to get in a trial period. Instead, say the offer will be set out in the agreement and send that out as soon as possible.
- Send the agreement without checking that the trial period clause is valid and compliant. Check the clause is in the body of the agreement, the commencement date is correct, it has an appropriate notice provision and it is not running alongside a probationary period clause – trial period first, probationary period second, if you want both in there.
- Demand a quick turnaround. You must tell the employee they can seek independent advice before signing and allow time for that. At least 3 days is a good rule of thumb.
First day
DO NOT:
- Proceed to engage in any activity at all in the workplace (including training or induction) without having the signed agreement in your hands. If the employee does anything that could be considered work before they have signed the agreement with the trial period in, it’s too late to enforce the trial period.
- Agree to vary the start date, without checking this matches the commencement day recorded in the agreement and ensuring any variation has been signed.
During employment/Last day
DO NOT:
- Fail to calendar when the 90 day period expires. Reminders leading up to then are helpful.
- Wait until the 89th day to make a decision. Instead, monitor the employment and identify issues early, letting the employee know what they are and how to fix them.
- Fail to give notice in accordance with the clause. This notice should be recorded in writing and given to the employee in a face-to-face meeting.
- Be dismissive, disrespectful or callous in your delivery. You may be protected from an unjustified dismissal grievance, but you still have obligations to act in good faith and to be a fair and reasonable employer. Tell the employee what the issues were broadly so they have a chance to learn and potentially rectify their approach the next time around.
- Put in place any pre-meeting process or offer support or representation before the notice of termination meeting. You don’t need to, and this increases risk and potential cost.
- List out the incidents that led to your decision in a detailed way. These can be readily challenged as a breach of good faith or unfair disadvantage claim, so keep it broad, with no surprises.
As with all employment related issues, circumstances can vary wildly. A 20-minute phone call to an expert to safety check and get your bearings before you set off, can end up saving you much time and cost in the long run.
