• Leah Norman

Terminating under a 90 day Trial Period

If the trial period isn’t going well and the you've decided to dismiss an employee, there are a few things to note...

Trial periods can be a useful tool for you as an employer wanting to check an employee's suitability for your business, but because there are a lot of ways that these clauses can be invalid, they can be a real trap.

If you terminate an employee's employment under an invalid trial period clause, the employee will be able to bring an unjustified dismissal claim in the Employment Relations Authority, and they will probably win their case.

So, before going any further, you need to make sure that the clause is valid.

  • One of the traps on this point is that the employment agreement has to be signed by both parties before the employee starts work, otherwise the employee will not be a new employee.

  • The next point to check is that the trial period is in the signed employment agreement, not a signed offer letter.

  • Then you need to make sure that the clause outlines the terms and impact of the trial period - This includes: specifying the date on which the trial period starts; the notice requirements; and that the employee cannot bring a personal grievance for unjustified dismissal if he is given notice of termination during the 90 day trial period.

If you can tick all of those boxes, it sounds as though the trial period will be valid.

So the next thing you need to do is raise your concerns with the employee and let them know what you're needing from them in terms of improvement.

Both you and the employee owe each other a duty of good faith, which means being active and constructive in establishing and maintaining a productive employment relationship and being responsive and communicative.

This duty requires you to tell the employee what is expected of him or her and where/how he or she is falling short of expectations.

If despite your coaching, the employee doesn't come up to par and you decide to terminate, there are a few more traps you need to be aware of.

  1. The first is that the employee must be given notice of termination before the end of the 90 day trial period. Ninety days is 90 days, not 90 working days, or three months. As long as notice is given during the 90 days, his last day can be after the 90 day period has ended.

  2. Notice should be in writing and it pays to communicate the reason for termination, so as to guard against any suggestion that the termination was for a discriminatory reason.

  3. The notice should be given in accordance with the terms of the employment agreement. So if the agreement says that one week's notice will be given, make sure you give them a week's notice.

If you are in any doubt, take some advice before terminating - contact us, we're here to help


This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

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