An easy trap for business owners to fall into…

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Trap

Even though 90 day trials are nothing new, implementing them correctly can still be a trap for many employers. Consider the following scenario:

Jane is a small business owner in desperate need of a sales person. She interviews Steve for the position and he seems like the ideal candidate. In fact, the interview goes so well that straight after the interview Jane offers Steve the position in a brief email outlining the core terms like the start date, duties and salary. Steve replies, eagerly accepting Jane’s offer. Jane later provides Steve with an employment agreement containing a 90 day trial clause, which he signs and returns prior to his first day.  Unfortunately Jane has stumbled into a common pitfall- she has tried to introduce a 90 day trial after Steve has already become an employee.

Trial periods can only be used for new employees, but many employers fail to appreciate what a “new” employee really means in an employment law context. Under the Employment Relations Act 2000 an employee includes “a person who has been offered, and accepted, work as an employee”. Once Steve accepted Jane’s offer, he became an employee and it was too late to introduce a 90 day trial clause into his employment agreement.  If you would like to use a trial period for a new staff member don’t forget to provide a copy of the proposed employment agreement with your offer.

Contact our specialist employment team if this raises any questions for you regarding your individual situation.

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Kylie Hudson
Solicitor

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