If an employer wants to test a prospective employee’s suitability for the role, they can, and should, use an employment agreement which includes a 90-day trial period.
Employers should never have a work trial (i.e. a one-off shift) before the employment agreement has been signed by their employee. This can be a costly mistake!
Protection from legal proceedings
Including trial provisions in an employment agreement offers employers protection from claims for unjustified dismissal. Where employment is terminated pursuant to a valid trial period, the employee cannot raise a personal grievance for their dismissal.
Employers can’t enter into an employment agreement containing a trial provision with someone who has been previously employed by them. The trial period will be invalidated and it will no longer act as protection for the employer. A trial shift can amount to “previous employment”.
By holding a work trial an employer can unintentionally lose the ability to use this protective mechanism. The following cases act as a reminder to employers not to trial staff if they haven’t signed an employment agreement.
Case 1
In Fagotti v ACME & Co Limited 2014, the Authority held that the employer could not rely on the 90-day trial provisions when terminating the worker’s employment. The worker completed one eight-hour shift on 9 February which both parties agreed was to assess his suitability for the role. He performed duties “that provided an economic benefit to [the employer] for which he expected, and received, remuneration.” So when he was given his employment agreement on 23 February, he had previously been employed by the Respondent by virtue of his shift two weeks earlier.
Case 2
Work trials can have implications for employers where there is no employment agreement. In Mawhinney v Sfizio Limited 2019, the worker undertook a ‘full shift’ after she was interviewed the day prior. She received no pay for the work performed however, the fact that she “expected to be rewarded monetarily for her work” took her out of the realm of being a volunteer. Her expectation was reasonable and clear. After her shift, Ms. Mawhinney asked if she should provide her bank details. She had incurred child-care and travel costs, and the Respondent never indicated that this would be an unpaid trial shift. The Authority held that the Applicant was an employee and she was entitled to bring a personal grievance for constructive dismissal.
If you are an employer or employee seeking advice, call us on 03 211 0080!
