Firstly you need to tell an employee before you employ them that they are being employed on a trial basis. It is no good going to an employee after you have employed them and telling them that they are on a trial period. It is too late. Therefore if you are offering a job on a trial basis make sure you tell potential employees at the interview.
Secondly the fact that the agreement is on a trial basis must be in your employment agreement. No employment agreement – no trial period. It is as simple as that.
Thirdly make sure the agreement sets out in sufficient detail the length of the trial period and, if possible, set out a procedure during that trial period where there will be reviews. The biggest problem that happens with trial periods is that an employer starts someone on say a two month trial. The employer says nothing to the employee during the trial period to raise concerns about performance. The employee, therefore, not only thinks that they are doing an ok job but never gets an opportunity to improve or address performance concerns. At the end of the two month trial the employer tells the employee that they are dismissed because they have not been satisfactory. You cannot do this.
During that two month period the employer needs to give the employee the opportunity how they are performing and more importantly let them know if there are performance issues which might lead to them not being given full time employment. I suggest that your probationary clause specifically provides for review dates during the trial period.
For example using the two month trial period the clause could state that after one month there will be a meeting at which time the employee will be told if there are any performance issues, told what they need to do to improve and given the opportunity to give any explanations. This means that if they have not improved by the two months at least they have had the opportunity to know what concerns the employer had.
It sounds simple. It is simple. Employees need to be told what an employer is thinking. Most employees are not mind readers and if employers do not tell them what they are doing wrong they cannot be expected to improve.
