A valid 90 day trial period will usually prevent a dismissed employee from taking an unjustified dismissal personal grievance claim if they are fired within the 90 days. It does not prevent the employee from taking an unjustified disadvantage or breach of contract claim.

We are finding that many 90 day clauses are completely invalid. This means that if your employer dismisses you you will probably have a very strong claim against them for unjustified dismissal.  Some key points:

• If you did not sign the employment agreement BEFORE your very first day of work, the 90 day clause is invalid.
• If the employer did not give you enough time to get advice about the clause before you signed the employment agreement (even if it was signed before you started work) it is probably invalid.
• If the clause does not exactly follow the wording required by law it is probably invalid.
• Now that 90 day clauses have been around for a while, many employers are getting careless and not taking enough care to ensure that their clauses are valid. The chance that your 90 day clause is null and void is increasing.
• Some employees make the mistake of taking legal advice from friends who do not understand 90 day clauses as well as they think they do. The result: the employee walks away from what would have been a strong claim.

 We are happy to have a quick look at your clause and to let you know if you have a case - at no cost. Please do not hesitate to contact us if you have any questions.

Some employment agreements contain 90 day trial period provisions. There are some important points to bear in mind:

• 90 day trial periods are only for new employees.
• Someone who has worked for that employer before cannot be put on a 90 day trial period.
• Someone who already works for that employer cannot be put on a 90 day trial period – even if they have only worked for that employer for 1 day.
• If you are dismissed under a 90 day trial period provision the employer has to tell you the reasons why you were dismissed if you ask at the time but they don’t have to give you the reasons for the dismissal if you ask later.
• If the employer dismissed you under the 90 day trial period you can still sue them for unjustified disadvantage, discrimination, sexual and racial harassment, breach of good faith (in some cases) or for failing to keep to the other terms of your employment agreement.

If you’re unsure if a 90 day trial period provision applies to you please contact us.

Many employees have 90 day trial provisions in their employment agreements. We don’t like them, but often employees have no choice but to accept a trial period if they want the job.

We have recently seen situations where long standing employees are being asked to sign revised employment agreements containing 90 day trial provisions. Employers can’t do this. The 90 days starts from the beginning of your employment – and not after you have already worked for them for longer than 90 days. If you are asked to sign such an agreement please contact us.

If you are a new employee and you are dismissed during the trial period, you can’t generally sue the employer for an unjustified dismissal, however, the law does allow you to sue them for other things, including unjustified disadvantage. This means that if you are bullied, the employer changes your work or working conditions without your consent, you are subjected to sexual or racial harassment, or any number of other unpleasant things, that you can still seek justice if you are dismissed. If something bad happens to you within the trial period, you don’t need to just walk away if you are dismissed. Please talk to us as we can help.

One of the reasons advanced for allowing 90 day trial periods for new employees was that the employer takes a risk in taking on a new employee, and being able to dismiss them easily within the first 90 days makes it easier for an employer to justify that risk.

We agree that there is a risk for employers when they take on new employees; but there are also risks for the employee.

If the employee was unemployed before starting work under a 90 day trial period, the harm to them from a dismissal within that time frame is less, as they’ll end up in a similar position compared to where they were before. But for employees who are giving up good, secure employment to take on a new job there are substantial risks. During that 90 day period the employee can be dismissed and have no personal grievance against the employer.

The employee can be put in the situation where they have given up a good income and job security, to end up being dismissed, merely because someone doesn’t like something trivial about them.

If you are an employee considering a job offer, we suggest trying to have the 90 day trial period clause excluded from the employment agreement. Your new employer must negotiate the employment agreement terms and conditions in good faith, and given what’s at stake for you, it’s worth a try.