Why independent advice matters for trial periods in New Zealand

Published 16 Sep 2025 | 2 min read

A trial period in New Zealand is only valid if the employee is clearly advised of their right to seek independent legal advice before signing the agreement, not just told they can review it with a family member or relying on wording in the contract. Employers who fail to actively advise employees to take independent advice risk having the trial period declared invalid, leaving dismissals open to personal grievance claims.

The challenge for businesses

Trial periods are often seen as a safety net for employers when hiring new staff. Yet many businesses discover too late that their trial period is unenforceable.

A key pitfall is failing to properly advise employees of their right to seek independent advice before signing their employment agreement.

Without this step, the agreement may look watertight on paper, but it can quickly unravel in front of the Employment Relations Authority (ERA).

Where things go wrong

Recent ERA decisions have shown that employers cannot rely on generic wording in an agreement or informal comments to prove compliance. Simply allowing an employee to “take the agreement home” or “discuss it with a spouse” does not meet the legal standard.

Employers across New Zealand are asking:

Is an offer letter enough?

Can I rely on a signed clause confirming advice was given?

Do I have to do more at the start?

The clear answer from case law is yes, more is required. The employee must be specifically told they are entitled to seek independent advice, and this should be documented.

The complications

The ERA has reinforced that trial periods are strictly interpreted because they restrict an employee’s right to bring a personal grievance for unjustified dismissal. That means any error, from unclear drafting to incorrect notice of termination, can void the trial period.

In one recent case, the Authority ruled that telling an employee they could “talk to their wife” was not the same as advising them to get independent advice. The result was a failed trial period and the employee successfully pursuing a grievance.

Lessons from the ERA

The Authority has made it plain that independent advice is not a box-ticking exercise. Employers must give real, clear advice before the agreement is signed, not rely on declarations hidden in the contract.

Trial period wording must strictly follow the Employment Relations Act and avoid errors such as referencing repealed or non-existent sections.

Termination under a trial period must also match the agreement’s requirements exactly, including written notice at the correct time.

Employers who miss these steps can face compensation orders for unjustified dismissal, as recent cases have proved.

What businesses should do next

For New Zealand employers, the takeaway is simple: always advise employees to seek independent advice before they sign, and keep a record of having done so. Relying on the agreement alone is not enough to prove compliance.

Trial periods remain a useful tool, but only if the process is handled with care from the first conversation through to any termination.

By driving clarity and respecting employee rights upfront, businesses can protect themselves from costly disputes and prove they have met the strict legal requirements.

If you're an employer seeking advice, our friendly HR and employment experts are just an email or a phone call away. 

Email us at info@eqconsultants.co.nz, or call us on 03 366 4034 for professional, one-on-one guidance.

This article is not intended as legal advice but is intended to alert employers to relevant topics of interest and how to be prepared.

Note: This information is based on official details from Employment New Zealand and is subject to change. Always refer to the latest guidelines for the most accurate information. Visit Employment New Zealand here.