Although businesses with 20 or more employees will not be able to use the 90-day trial period from 6 May, they will be able to use probationary periods as an alternative.

Like the 90-day trial period, a probationary period must be agreed by the employer and employee and it must be written into the employment agreement.

Trial Period vs Probationary Period
There are differences between a 90-day trial period and a probationary period, and the clauses in the employment agreement will look quite different. Let’s take a look…

Provided the employer and employee have agreed (in writing) to a trial period prior to employment commencing, then a trial period commences on the first day of work.

Notice of termination under this clause can be given by the employer in writing during the trial period, even if the actual dismissal does not become effective until after the trial period ends.

During the trial period the employer may terminate this employment relationship and the employee generally cannot pursue a personal grievance on the grounds of unjustified dismissal.

There is little process required under a trial period to terminate employment.

With probationary periods, there is a more managed process to work through in order to terminate an employee.

The employer can only give notice where they have followed a fair and reasonable process which might include:
• Raising any concerns with their work and letting them know if there is a chance that their employment might not be continued after the probationary period ends
• Advising the employee what the concerns are, and what their employer believes good performance looks like in relation to the concerns
• Giving the employee ongoing and appropriate training along with any support that may be needed and is reasonable
• Giving the employee the opportunity to improve before the end of the probationary period
• And always, these discussions should be documented

Before dismissing someone under a probationary period, you should make sure you have worked through a fair and reasonable process. If you’re unsure of how to manage problems during the probationary period, we recommend you seek professional advice.

Please contact us if you need help with any of the new legislation – we are only a phone call away 07 823 3250.