Every New Zealand employer can use a 90-day trial period now, not just small businesses. That’s been the case since December 2023. What hasn’t changed is how easy the trial is to get wrong.
MBIE’s numbers say it plainly. Between 2015 and 2023, 75% of trial provisions challenged at the Employment Relations Authority were found invalid. Often, something small is left out of the process, which results in the trial period being unenforceable. It’s the kind of gap HR Profiling Solutions sees constantly in businesses that don’t understand the process.
What the Trial Period Actually Does
A valid trial, under section 67A of the Employment Relations Act, lets you dismiss a new employee within their first 90 days without them raising a personal grievance for unjustified dismissal.
The Employment Relations Amendment Act 2026 widened it further this year, extending the legislation to cover grievances for “unjustified disadvantage” connected to the dismissal as well.
It changes nothing about the basics, though. Get the process wrong, and none of it applies.
Getting the trial clause into the recruitment and hiring process properly, before day one begins, isn’t optional. It’s the whole ballgame. If the agreement with the clause in it is signed after the person’s already started, even by a few hours, then you’ve lost the protection.
Rehiring trips people up too. A trial only works on someone genuinely new to your business. Bring back a former employee, even one who left a long time ago, and you can’t apply a fresh trial to them.
Then there’s timing on notice. If you’re ending the trial, notice has to go out while the 90 days are still running, even if their last working day lands after that window shuts. Miss it by a day and the Authority won’t care how good your reasons were.
The Authority takes a hard line on all three. Case after case gets thrown out on exactly this kind of procedural slip, not on the merits of the dismissal itself.
Using the Trial Period Well
A trial period only does its job if you’re actually watching, not just holding it in reserve as a legal fallback. Having clear expectations from day one, regular check-ins through the 90 days, and a real read on how the person’s settling in is important.
Using behavioural insight during the recruitment process helps here. By utilising our Extended DISC® Profiling you can spot a communication mismatch, role mismatch or a working-style clash early. You can then work on it well before day 89.
This way the outcomes tend to be better. The hire works out, and you’ve built a stronger start to the employment relationship. If it doesn’t work out, you’ve got a clean, defensible process behind the call.
Getting the Process Right From the Start
Build the trial period into your standard onboarding. Train managers on what “during the trial” actually means for notice and documentation, because most of the failures at the ERA trace back to a manager who didn’t know the rules, not one who ignored them.
Pair the legal mechanics with real development support for new hires. A trial period that only ever gets used to end employment relationships is a trial period doing half its job.
Frequently Asked Questions
Only if they’re genuinely new to your business. If someone’s worked for you before, even casually or briefly, you generally can’t apply a fresh trial to a rehire.
Before the person starts work. Sign it after their first shift, even by a few hours, and the Employment Relations Authority will likely find it invalid.
Up to 90 calendar days. The exact number has to be spelt out in the agreement, not left open-ended.
The protection disappears. The employee can bring a standard unjustified dismissal claim, which is exactly what the trial period was meant to prevent.
No. You still need a genuine, good-faith reason tied to their suitability for the role. A trial removes one legal risk. It doesn’t remove your wider obligations as an employer.
Get in touch with our team to talk through how behavioural profiling can strengthen your hiring decisions from day one, removing the risk of needing to apply the 90 day trial rules.
