How Does the 90-Day Trial Period Work in New Zealand?

Last updated: 22 August 2026

In New Zealand, a 90-day trial period lets an employer dismiss a new employee within the first 90 days of employment without the employee being able to bring a personal grievance for unjustified dismissal. Since December 2023, every employer can use one, regardless of size. But the clause is only enforceable if it is done exactly right: agreed in writing, signed before the employee starts work, and used only for genuinely new employees.

Trial periods are governed by sections 67A and 67B of the Employment Relations Act 2000. The Employment Relations Amendment Act 2026 widened their effect from 21 February 2026: a valid trial period dismissal now also blocks an unjustified disadvantage claim where the disadvantage relates to the dismissal itself. The employee keeps every other protection, including minimum entitlements and the right to bring claims for discrimination or harassment. In practice, the courts read trial clauses strictly, and a large share of challenged trial dismissals fail on technicalities in the paperwork rather than anything that happened at work.

Who can use a 90-day trial period?

All employers in New Zealand can use 90-day trial periods. The Employment Relations (Trial Periods) Amendment Act 2023 extended trials to every employer from 23 December 2023. Before that, only employers with 19 or fewer employees could use them.

The employee must be genuinely new to the employer. Section 67A applies only to an employee who has not previously worked for that employer. Even a single prior casual shift, a fixed-term stint, or holiday work years earlier can invalidate the trial clause.

There is also an immigration overlay. Employers cannot rely on 90-day trial periods for migrant workers hired under the Accredited Employer Work Visa scheme, so check visa status before including a trial clause.

What makes a trial period clause valid?

Because a valid trial removes a significant legal right, the Employment Relations Authority and the courts interpret the requirements strictly. To be enforceable, the trial period must meet all of the following:

• In writing: the trial provision must be part of the written employment agreement, stating that the trial applies for a specified period of 90 days or less, and that during the trial the employer may dismiss the employee without the employee being able to bring a personal grievance for unjustified dismissal.
• Signed before work starts: the agreement must be signed before the employee begins their first day. In the leading case, Smith v Stokes Valley Pharmacy (2009) Ltd, the employee signed her agreement after she had already started work, and the trial clause was held to be invalid. Signing on the morning of day one, after work has begun, is too late.
• A real chance to get advice: the employee must be given a reasonable opportunity to seek independent advice on the agreement before signing. Handing someone an agreement and asking them to sign on the spot puts the trial at risk.
• Good faith: the trial must be agreed in good faith. It cannot be sprung on the employee or misrepresented.

If any requirement is not met, the trial clause fails and the dismissal is assessed under the ordinary unjustified dismissal test in section 103A. That is where employers who thought they were protected discover they are not.

What can and cannot be challenged after a trial period dismissal?

A valid trial period dismissal cannot be challenged as an unjustified dismissal. Since 21 February 2026, when the Employment Relations Amendment Act 2026 came into force, the employee also cannot reframe the dismissal as an unjustified disadvantage claim where the disadvantage relates to the dismissal. That change closed a workaround that had developed in practice.

Everything else survives. An employee dismissed under a trial period can still bring a personal grievance for discrimination, sexual or racial harassment, or duress over union membership. Minimum employment entitlements, including wages, holidays, sick leave and health and safety protections, apply in full during a trial. Good faith obligations also continue to apply to how the parties deal with each other during the employment.

How must notice be given?

The employer must give notice of dismissal within the 90-day trial period, using the notice period stated in the employment agreement. The dismissal itself can take effect after the 90 days, as long as notice was given inside them. Notice given on day 91 is too late, and the ordinary dismissal rules apply.

The employer does not have to give reasons for a trial period dismissal, and does not have to follow the usual disciplinary process. But the notice must be given in the way the agreement requires. Paying the employee in lieu of notice when the agreement does not allow it has invalidated trial dismissals before, so employers should follow the agreement to the letter.

How is a trial period different from a probationary period?

	90-day trial period	Probationary period
Who	New employees only	New employees, or existing employees in a new role
Length	Maximum 90 days	Any agreed length
Dismissal	No reasons or process required if the clause is valid	Fair process and a justified reason still required
Personal grievance for dismissal	Blocked if the trial is valid	Fully available

The two do not mix well. In Lewis v Immigration Guru Limited, the employer ran a probationary-style process but then tried to rely on the 90-day trial to dismiss. The Court held it could not. Choose one mechanism and apply it properly.

The most common ways trial periods fail

• The agreement was signed after the employee had already started work, even by a few hours.
• The employee had worked for the employer before, in any capacity.
• Notice was given after day 90, or not in the form the agreement required.
• The employee was not given a reasonable opportunity to get independent advice.
• The employer ran a performance management or probation process, then tried to fall back on the trial.
• The employee was on an Accredited Employer Work Visa, where trial periods cannot be used.

“Most of the trial period dismissals we successfully challenge do not turn on what happened at work. They turn on paperwork: an agreement signed on the first morning instead of before it, a forgotten casual shift two years earlier, or notice given a day late. For employers, the protection is real but only if the mechanics are perfect. For employees, it is always worth having the clause checked before assuming you have no claim.”
Andy Bell, Partner, Lane Neave (Recommended Lawyer, Legal 500 Asia Pacific)

What should you do?

If you are an employee:

• Ask for the employment agreement before your start date, and take time to get advice before signing.
• If you are dismissed under a trial period, have the clause checked. If it is invalid, you have 90 days from the dismissal to raise a personal grievance.
• Remember that discrimination and harassment claims are never blocked by a trial period.

If you are an employer:

• Get the signed agreement back before day one, without exception.
• Ask every candidate whether they have worked for you before, including casual work.
• Diarise the 90th day and give notice well inside it, in the form the agreement requires.

Our team advises both employees and employers on trial periods, including drafting and using 90-day trial clauses. For the wider 2026 reforms, see our guide to what changed in the Employment Relations Amendment Act 2026, and browse more employment law insights.

Frequently Asked Questions

Can I be dismissed without any reason during a 90-day trial?

Yes, if the trial clause is valid. The employer does not have to give reasons or follow a disciplinary process. But if the clause fails any of the legal requirements, the dismissal is judged under the ordinary unjustified dismissal test.

What if I signed my employment agreement after my first day?

The trial clause is almost certainly invalid. The agreement must be signed before you start work. In Smith v Stokes Valley Pharmacy, signing after starting was fatal to the trial, and dismissals in that situation can be challenged as unjustified.

Does a trial period apply if I have worked for the employer before?

No. Trial periods only apply to employees who have never worked for that employer. Any previous work, including a casual shift or fixed-term role, means the trial clause cannot be relied on.

Can large employers use 90-day trial periods?

Yes. Since 23 December 2023, all employers can use trial periods regardless of how many staff they have. Before that date, trials were limited to employers with 19 or fewer employees.

What claims can I still bring after a valid trial period dismissal?

You can still bring claims for discrimination, sexual or racial harassment, unpaid wages or holiday pay, and breaches of minimum entitlements. Since 21 February 2026 you cannot bring an unjustified disadvantage claim where the disadvantage relates to the dismissal itself.

Written by Andy Bell, Partner at Lane Neave. LLB, BA (Psychology). Recommended Lawyer, Legal 500 Asia Pacific. Andy has advised employers and employees on New Zealand employment law for over 20 years and is one of Wellington’s most experienced MBIE mediation practitioners.