The 90-Day Trial Clause: The Simple Question Many Employers Miss and the Chaos It Can Cause

Published 3 September 2026 | 4 min read

When an employer calls us wanting to end employment under a 90-day trial period, one of our first questions is surprisingly simple:

“Did the employee sign their Individual Employment Agreement before they started work?”

The answer can be either unclear—or no.

That one detail can determine whether the employer has a valid trial period at all.

A 90-day trial is not automatic simply because a clause appears in an Individual Employment Agreement (IEA). Trial periods remove important dismissal protections, so the legislative requirements are applied strictly. If any of the fundamentals are missing, the employer may be unable to rely on the clause.

The result? What appeared to be a straightforward trial-period dismissal could instead become an unjustified dismissal claim.

The fundamentals employers must get right

Before relying on a 90-day trial period, check that:

• The employee is genuinely new. They must not have previously worked for the employer. Earlier work—including some trial shifts, induction, training or familiarisation—may affect eligibility.
• The trial is agreed before employment begins. The IEA containing the trial clause must be signed before the employee starts work. Signing it on their first day, after induction begins or after they complete their first task may be too late.
• The employee has a reasonable opportunity to obtain independent advice. Sending an agreement shortly before the start date and expecting an immediate signature may place the trial period at risk.
• The clause is correctly drafted. Sections 67A and 67B of the Employment Relations Act 2000 govern 90-day trial periods. The wording must make clear that the trial starts at the beginning of employment, how long it will last, that the employer may dismiss the employee during that period and that the employee cannot bring certain proceedings relating to that dismissal.
• The trial is no longer than 90 calendar days. Employers may use a shorter period, but not a longer one.
• The employee is eligible for a trial period. For example, Immigration New Zealand does not permit trial periods for employees working under an Accredited Employer Work Visa.
• Notice is given correctly and on time. Notice of dismissal must be given within the valid trial period and must comply with the notice requirements in the IEA. The employee’s final day may fall after the trial ends, provided notice was given before it expired.
• The employer continues to meet its remaining good-faith obligations. A trial period does not permit misleading, deceptive or uncommunicative conduct. Nor does it prevent an employee from raising other types of personal grievance, such as discrimination or harassment.

Having a clause is not the same as having protection

Lane Neave’s September 2025 article, Probationary period or 90-day trial: knowing when and how to use them, confirms that trial periods are governed by sections 67A and 67B and stresses the need for a correctly drafted clause, reasonable opportunity for independent advice and strict compliance with the trial period’s requirements.

This is where many employers are exposed. Their IEA may contain a clause headed “90-Day Trial Period”, but the wording may be outdated, incomplete or inconsistent with another clause. Alternatively, the agreement may be sound, but the onboarding process makes the trial invalid because the employee signs after starting work.

A useful question for every employer: If you needed to rely on your trial clause tomorrow, could you produce a correctly worded, signed agreement—and prove it was signed before the employee performed any work?

If there is any uncertainty, check before taking action. Once an employee has started work, it is too late to repair an invalid trial period retrospectively.

EQ Consultants can review your IEA trial-period wording and onboarding process to identify gaps before they become costly employment problems. Contact us to arrange an IEA review—and always seek advice before dismissing an employee under a trial clause.

Sources: Employment New Zealand, “Trial periods”, updated 17 March 2026; Lane Neave, “Probationary period or 90-day trial: knowing when and how to use them”, 8 September 2025. This article provides general information and is not legal advice.

Amy Lawson,
Director | HR Consulting Manager