Introduction
Include trial period stipulation in employment contract
Set specific and measurable requirements
Document training
Document feedback
Remember trial period end date
There is a widespread perception among both employers and employees that trial employment periods do not constitute "real" employment. This does not have to be the case. Therefore, this article provides guidance on how trial periods can be used for their intended purpose, which is for the employer to assess within a limited period whether a new hire is a suitable fit for the role and reduce the risk of hiring an unsuitable candidate.
During such time, the rules for terminating an employee are different than for regular employees. There are three important differences to dismissal procedures during the trial period:
- The conditions are less strict if the dismissal is due to issues with employee's ability to adapt to their work, their professional skills or reliability. The Supreme Court has ruled that the threshold for dismissing an employee during the trial period must be significantly lower than that for regular employees.
- The notice period is shorter.
- In general, the employee does not have the right to remain in their post if they disagree with the dismissal and take the issue to court. In practice, this means that a trial period entails less risk for the employer than waiting until after the end of the trial period.
Below are five ways to effectively structure the trial period.
Include trial period stipulation in employment contract
The usual rules for dismissal will apply unless the employment contract explicitly states that the employee has been hired for a specified trial period. When the employment contract contains such a trial provision, the notice period during the trial period is 14 days. This applies to dismissal initiated by both the employer and the employee. During the trial period, the notice period is also calculated from the date that the notice is given, instead of from the first day of the following month.
Trial periods can last up to six months, which can be taken advantage of in order to best assess the employee's performance. The trial period provision should also stipulate that the period can be extended if the employee is absent during that time for reasons that are unrelated to the employer.
Set specific and measurable requirements
Although the threshold for dismissal is lower during the trial period, a number of conditions must still be met. For example, the employer must be able to provide evidence that the employee is not working to the expected standard. Case law shows that dismissals during this period are easier if specific and measurable requirements have been in place from the start of the contract, such as setting personal budgets or objectives.
In order for a trial period to be valid, the employee must have received the necessary training and guidance. The employee's competence and experience must be considered at this point, as more training will be required when hiring a recent graduate as opposed to an experienced professional. In any case, it is an advantage to be able to document that the employee has received basic information about the business during the onboarding process, in addition to an educational provision that has been adapted to their level of experience.
While it can be tempting to avoid giving negative feedback, failure to do so may have negative consequences. In order to maximise the probationary nature of the trial period, the employee should receive feedback on their performance and be given a real opportunity to improve. This can be done, for example, through regular follow-up meetings with the employee. In order to avoid evidentiary problems, employers should ensure that at least part of the feedback is recorded in writing.
Remember trial period end date
The expiry date of the trial period is decisive for whether the special rules for dismissal during the trial period apply. If notice is given just one day after the stipulated end date, normal dismissal rules will apply. The Supreme Court's Appeals Committee recently ruled that the start and end date of a trial period are calculated based on corresponding dates; for example, a trial period that starts on 1 January would end on 1 July. Therefore, employers should prepare in advance to give notice and not wait until close to the end date.
For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.