Probation, Trial Period, Période d’Essai: 7-Country Comparison

Last verified: 2026-05-02

The early-employment “probation” or “trial” mechanism is one of the most miscoded clauses in cross-border HR. France’s période d’essai is explicitly statute-bounded. New Zealand’s 90-day trial period (ERA s.67A) is restricted to small employers and excludes grievance claims. The UK has no statutory probation but a 2-year unfair-dismissal threshold. Australia has no statutory probation but unfair dismissal protection at 6 months. This guide explains how each works, the maximum length, and the legal effect of dismissal during the period.

Quick Answer (TL;DR)

• France: Période d’essai — 2 to 8 months by category, statutory cap, single renewal under L.1221-21.
• NZ: 90-day trial period only for sub-20-employee employers (ERA s.67A); excludes personal grievance for unjustified dismissal.
• Australia: No statutory probation; unfair-dismissal protection begins at 6 months (12 for small biz).
• UK: No statutory probation; unfair-dismissal protection at 2 years (reform pending day-one).
• Canada: ESA “first 3 months” allows termination without notice; common law still allows wrongful-dismissal claim.
• US: At-will default; “introductory period” purely contractual.

Comparison Table at a Glance

Country-by-Country Deep Dive

France — Période d’Essai (L.1221-19 to L.1221-26)

Statute: Code du travail L.1221-19 to L.1221-26.

The période d’essai is the only fully codified probation system in the seven countries.

Initial duration cap (L.1221-19):

• Ouvriers and employés: 2 months maximum.
• Agents de maîtrise and techniciens: 3 months maximum.
• Cadres: 4 months maximum.

Renewal (L.1221-21):

• Allowed once if the convention collective expressly permits.
• Total (initial + renewal) cannot exceed:
  • 4 months for ouvriers / employés.
  • 6 months for agents de maîtrise.
  • 8 months for cadres.

Notice during période d’essai (L.1221-25, L.1221-26):

• Less than 8 days: 24 hours.
• 8 days to 1 month: 48 hours.
• After 1 month: 2 weeks.
• After 3 months: 1 month.

The notice during période d’essai counts forward — if remaining trial is shorter than required notice, the period is automatically extended.

Dismissal during période d’essai. No requirement to give reason; no procedure de licenciement. But cannot be discriminatory or in bad faith — Cour de cassation jurisprudence since 2008.

Source: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006901075

New Zealand — 90-Day Trial Period (ERA s.67A)

Statute: Employment Relations Act 2000 ss.67A–67H.

The 90-day trial period is highly restricted:

Eligibility (s.67A(1)):

• Employer must have fewer than 20 employees as at the date the agreement is entered.
• Trial must be specified in writing in the IEA.
• IEA must be signed before the start of work.

Effect:

• Employer may dismiss during the trial without grievance claim for unjustified dismissal (s.103A).
• Employee retains other claims: discrimination, harassment, breach of good faith.
• Notice as per IEA must still be given (no PILON allowed).

Probation period (separate, s.67):

• Available to all employers regardless of size.
• Does NOT exclude personal-grievance rights.
• Allows employer to assess fit; dismissal still requires fair process under s.103A.

Source: https://www.employment.govt.nz/starting-employment/trial-and-probationary-periods/

Australia — No Statutory Probation, NES Threshold

Statute: Fair Work Act 2009 s.382, s.383.

Australia does not have a statutory probation period. Instead, the unfair-dismissal protection (Part 3-2) only applies after the employee has completed the minimum employment period:

• 6 months for employers with 15+ employees.
• 12 months for small business (<15 employees).

During the minimum employment period, employer may terminate without unfair-dismissal exposure (subject to general protections, anti-discrimination law).

A contractual probation clause is enforceable as a notice-period reduction during early employment — many employers use a 3 or 6-month probation period that mirrors the NES threshold.

Source: https://www.fairwork.gov.au/employment-conditions/probation-periods

United Kingdom — No Statutory Probation, ERA 2-Year Threshold

Statute: Employment Rights Act 1996 s.108 (qualifying period).

Unfair-dismissal protection currently requires 2 years’ continuous service (with exceptions: discrimination, whistleblowing, asserting statutory rights — day-one protections).

A “probationary period” is purely contractual. Employer typically reserves a shorter notice (1 week vs 1 month) during probation. Length is at the employer’s discretion — 3 to 6 months is common.

Reform pending. The Employment Rights Bill 2024–25 (in Parliament 2026) is set to remove the 2-year threshold and introduce a “statutory probationary period” with day-one unfair dismissal protection thereafter. Watch for Royal Assent.

Source: https://www.legislation.gov.uk/ukpga/1996/18/section/108

Canada (Ontario) — ESA First-3-Months No Notice

Statute: ESA 2000 s.54, s.55.

Ontario ESA does not codify probation, but s.54 exempts employer from notice requirements during the first 3 months of employment. After 3 months, ESA s.57 minimum notice applies.

Common law overlay. Even within the first 3 months, common-law wrongful dismissal can apply if the contract does not validly limit notice. A “probation clause” in the contract that excludes Bardal common-law notice must be carefully drafted to be enforceable.

Source: https://www.ontario.ca/laws/statute/00e41

United States — At-Will + Introductory Period Common

Statute: Common law of contracts; FLSA.

Most US employers describe an “introductory” or “orientation” period of 60–90 days. This has no statutory effect because at-will already permits termination at any time.

The introductory period is mainly used:

• To delay benefits eligibility (health insurance after 90 days, retirement plan after 1 year).
• To signal probationary fit assessment.
• To distinguish performance reviews.

State exceptions:

• Montana — Wrongful Discharge from Employment Act requires “good cause” after probationary period (default 12 months); employer may set probation up to 12 months.

Source: https://www.dol.gov/

Decision Framework / Q&A

Q1: I’m hiring a French cadre. Can I write 6 months probation?

Yes, but only as 4 months initial + renewable once if your convention collective permits. The CCN must explicitly allow renewal. Otherwise the renewal is void and the cadre is confirmed at 4 months.

Q2: My NZ company has 25 employees. Can I use the 90-day trial?

No. ERA s.67A is restricted to employers with <20 employees as at the date of the IEA. Use a probation period (s.67) instead — but you do NOT exclude grievance protection.

Q3: Australian probation — should I bother?

A contractual 6-month probation in Australia mirrors the NES minimum employment period. It signals the assessment phase to the employee and may reduce notice during probation. It does not change unfair-dismissal exposure (which kicks in at 6 months regardless).

Q4: UK new hire under ECCTA-era. What changes about probation?

The UK Employment Rights Bill (in Parliament) is set to introduce a statutory probationary period. Watch the Bill — when commencement orders are made, the 2-year threshold disappears.

Q5: Ontario new hire fired at month 4. Notice required?

Yes — ESA s.57 at month 4 requires 1 week notice (or pay in lieu). Common-law Bardal notice may apply on top if the contract doesn’t validly limit it.

Common Pitfalls (Gyoseishoshi View)

1. France: extending période d’essai by oral agreement — invalid; written renewal must be signed before initial period ends.

2. NZ: drafting 90-day trial when employer has 20+ employees — clause is void; employee has full grievance protection.

3. Australia: terminating in month 5 to avoid unfair-dismissal threshold and stating “no reason” — exposes employer to general protections and anti-discrimination claims.

4. UK: assuming probation reduces unfair-dismissal threshold — it doesn’t currently. The 2-year ERA threshold is independent.

5. Canada: contract excluding common-law notice without proper drafting — single clause invalid = entire termination clause invalid.

6. US: starting employee with 90-day “probation” that actually creates implied for-cause expectation — Montana, California, and some other states will treat it as quasi-contract.

Conclusion

Probation across the seven jurisdictions ranges from a fully codified system (France) to a purely contractual concept (UK pre-reform, US, Canada). The most-litigated point is whether the probation clause was drafted compliantly — France requires CCN authority for renewal, NZ requires <20 employees, Canada requires careful exclusion of common-law notice. Always draft the probation clause to fit the local statute before the employee signs the offer letter.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not solicitors, barristers, attorneys, avocats, or licensed legal practitioners in any jurisdiction.

Sources

• France Code du travail L.1221-19: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006901075
• France L.1221-21 renewal: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006901076
• France L.1221-25 préavis: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006901080
• New Zealand ERA s.67A: https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58625.html
• New Zealand employment.govt.nz trial: https://www.employment.govt.nz/starting-employment/trial-and-probationary-periods/
• Australia Fair Work probation: https://www.fairwork.gov.au/employment-conditions/probation-periods
• Australia FW Act s.382/383: https://www.legislation.gov.au/Details/C2024C00194
• UK ERA s.108 qualifying period: https://www.legislation.gov.uk/ukpga/1996/18/section/108
• UK Employment Rights Bill 2024–25: https://bills.parliament.uk/bills/3737
• Canada Ontario ESA s.54: https://www.ontario.ca/laws/statute/00e41
• US Montana Wrongful Discharge Act: https://leg.mt.gov/bills/mca/title_0390/chapter_0020/parts.html