The new 90 day trial period is very useful for employers. An employer can now asses a new employee over a 90 day period to ensure they are a suitable fit for their business, without being troubled with the risk of personal grievance claims.

However, it is never that easy. The Employment Court has issued a judgment, Blackmore v Honick Properties Ltd, that may create problems for employers relying on a 90 day trial period.

In this case, Mr Blackmore was employed as a farm manager for Honick Properties Ltd. On 5 October 2010 Mr Blackmore was formally offered employment by way of a letter setting out the basic terms of employment. The letter also stated that on his acceptance of the position, a Federated Farmers employment agreement would be filled out containing those basic terms of employment. Mr Blackmore accepted this offer by email on 10 October.

Mr Blackmore began work at 7am on 15 November 2010 and was given an employment agreement to sign shortly after 8am on that day. The employment agreement included a 90 day trial period. The trial period had not been discussed previously. Mr Blackmore was then told there was work to be done on the farm and that the employment agreement should be signed so they could get on with the farm work. Mr Blackmore signed the agreement on that day.

Around 31 January 2011 Mr Blackmore was told his employment would not continue after the trial period and he was given 2 week’s notice. Mr Blackmore raised a personal grievance.

The Court found the trial period was invalid on the basis that it had been unfairly bargained for. The Court stated that to effectively institute a trial period, the employment agreement containing the trial period provisions must be provided to the prospective employee at the same time as, and as part of, making an offer of employment to the prospective employee. The prospective employee must also be advised of their right to, and be given a reasonable time to, seek advice about the terms of employment.

If you have any employment queries that you would like assistance with, please contact us.

This article is intended as a point of reference and should not be relied on as a substitute for professional advice. Specialist advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this article.

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