Everyone
Trial and probationary periods
Find out about what trial and probationary periods are, when they can be used and employee rights while they’re in place.
What are trial and probationary periods?
An individual or organisation that hires 1 or more employees and contracts them to work in exchange for wages or salary under a ‘contract of service’ (commonly called an ‘employment agreement’). An employer may employ a new employee on a trial period of up to 90 calendar days. If the employer dismisses the employee during the trial period, the employee cannot take a personal grievance for unjustified dismissal. Trial periods must be agreed between the employer and employee in a written employment agreement before the employee starts work. A period, usually at the beginning of employment, to assess an employee’s suitability for the job. Probation periods are different to trial periods. Employers must follow the usual dismissal procedure to dismiss an employee during a probation period. A written document setting out the terms and conditions of employment agreed by the employer and employee (also known as a ‘contract of service’). It can include other contractual documents and agreements made by the employer and employee. Every employee must have a written employment agreement. Any person, whatever their age, who is employed by an employer to do any work for hire or reward under a ‘contract of service’ (commonly called an ‘employment agreement’).
A skills assessment or pre-employment trial as part of a job interview is not the same as a trial or probationary period.
In some situations, if work is going well, the employer may choose to end the trial or probationary period early and confirm continued employment.
The differences between trial and probationary periods
- Length of time: a trial period cannot last longer than 90 days. Probationary periods do not have a fixed time limit so can be used for a longer assessment period if the employee and employer agree.
- Reason for dismissal: if an employee has been on a trial period, their employer does not have to give a reason before dismissing them. If an employee has been on a probationary period, their employer must give them a good reason for dismissal and a fair opportunity to resolve any problems first.
- Previous employment: an employee can only be on a trial period if it’s their first time working for that employer. An employee can be on a probationary period if they are new to the organisation, or if they already work there and are trying out a new role.
Employee rights on a trial or probationary period
- An employee’s
employment rights and responsibilities do not change if they’re on a trial or probationary period. The only exception is that they cannot bring aThe requirements in law for how employers must treat, pay and protect their employees. All employees have these rights even if they’re not included in the employment agreement or if the agreement says they get less or worse.
personal grievance forAn action that an employee can take against a current or former employer when they have an employment issue they cannot resolve.
unjustified dismissal (or other legal proceedings about dismissal) if they are on a trial period.When an employee is terminated from their job unfairly or for reasons that the Employment Relations Authority or Employment Court deem to be unfair.
- Employees on a trial or probationary period must be treated the same as employees who are not.
- Employees must be paid during a trial or probationary period. Employers must not use one to get work done for free.
Employee rights and responsibilities
Employees who are union members
An organisation that supports and advocates for employees in the workplace. Unions bargain for collective agreements and help employees with information and advice about work-related issues. The employment agreement between 1 or more unions and 1 or more employers and 2 or more employees. Also see ‘Employment agreement’.
For example, if the collective agreement says that the employee cannot be employed on a trial period, then there cannot be a trial period in their individual terms.
Trial periods
Employers can use a trial period when hiring a new employee for up to the first 90 calendar days of employment. They can be used in any industry and for any job.
Trial periods in employment agreements
A trial period must be agreed to by the employee and employer in the employment agreement before the employee starts work otherwise it is not valid.
The employment agreement must state that:
- from the very start of their employment, the employee will be on a trial for a set period which is not more than 90 days long (but can be shorter). The exact time period must be stated, for example, it could be 30 days, 90 days, or another stated time period, and
- during the trial, the employer can dismiss the employee, and
- the employee cannot bring a personal grievance or other legal proceedings about their dismissal.
When a trial period ends
If the trial period has gone well, no one needs to do anything. The employee will continue in their role.
If an employer wants to dismiss an employee during their trial period, they must:
- give the employee the amount of notice they both agreed to in the agreement, or
- give them a reasonable period of notice of termination of the employment if the agreement does not specify a notice period.
The employee’s last day can be after the trial period has finished, as long as notice was given during the trial period.
If an employee is dismissed during a trial period, they cannot bring a personal grievance for unjustified dismissal (or other legal proceeding about their dismissal), unless:
- their employer did not give them the amount of notice in the employment agreement (or reasonable notice if a notice period has not been specified)
- they started working before the agreement was signed
- they were not given a reasonable opportunity to get independent advice on the employment agreement
- the employment agreement does not mention there is a trial period.
Employees can bring a personal grievance on other grounds, for example, if they experience:
- discrimination
- sexual or racial harassment
- pressure about union membership
- something their employer does that unjustifiably disadvantages them.
In these situations, employees may be able to take a personal grievance against their employer and the Employment Relations Authority might decide the trial period was invalid. The Employment Relations Authority decision in the Cradock versus Allied Investments case is an example of where the trial period was found to be invalid.
Cradock versus Allied Investments case - Employment Relations Authority(external link)
Jennifer’s boss, Omesh, tells her that she has the job on Monday. She starts work on Tuesday and she signs her employment agreement on Wednesday.
Jennifer’s employment agreement has a trial period for 60 days, but this is invalid because Jennifer did not sign the agreement before she started work.
Omesh cannot dismiss Jennifer under the trial provision and if he did, she could bring a personal grievance for unjustified dismissal. If Omesh had wanted a trial period for Jennifer, he should have made sure that she agreed to it, had a chance to get advice and raise any issues, and signed her employment agreement before she started work.
Probationary periods
A probationary period:
- gives employers an opportunity to assess an employee’s skills
- can be used when an employee starts a new job (even if they already work there but they’re changing roles)
- cannot be used after a trial period
- must be recorded in writing in the employment agreement – the clause must clearly state that there is a probationary period, and it should state how long it will last. If the employee and employer agree to it while talking but the employer did not put it in the employment agreement, then the probationary period is not valid
- can be for any length of time, but the time must be reasonable considering all the relevant circumstances of the employee, employer and the job
- does not limit the employee’s rights and responsibilities or their employer’s
- must be negotiated and agreed to by the employee and their employer, and used in
good faith. An underlying principle in employment law which requires employers and employees to deal with each other honestly, openly, and in a fair and timely way.
Employers who want to put a probationary period clause into an employment agreement should seek legal advice.
Employee rights and responsibilities
Employer rights and responsibilities
During the probationary period
During the probationary period, employers must follow a fair process. This includes:
- telling the employee if there are any issues with their work, and if there is a chance their employment might not continue after the probationary period ends
- telling the employee what these issues are, and what good performance looks like
- giving the employee the opportunity to improve, which means that the employer should be giving them feedback, support, and training throughout the probationary period so that the employee knows if there are issues and has a chance to improve before the end of their probationary period.
Growing performance, training and development
When an employee is on a probationary period, it is good practice for their employer to tell them at the start when they can expect to receive training and feedback. The employer must follow through on any commitments they have made to the employee.
When a probationary period ends
If the probationary period has gone well, no one needs to do anything. The employee will continue in their role. The employer cannot just tell the employee to leave their job at the end of the probationary period. They must:
- have assessed the employee fairly
- have told the employee why their performance was not good enough and that they intend to end their employment
- give the employee an opportunity to respond to these points.
If the employer still decides to end the employment, they must give the employee the amount of notice stated in their employment agreement.
Employees can raise a personal grievance on the grounds of unjustified dismissal if, for example, they:
- think the employer did not have a good reason to dismiss them
- were not given appropriate advice and training on how to do the job effectively, or
- were not fairly assessed.
Further support
If you have any concerns about a trial or probationary period, see our guidance on resolving problems, or contact us for further help.