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.

MmowW Scribe produces compliant probation clauses for each jurisdiction with the latest 2026 statutory bounds built in.

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Disclaimer

Legal information, not legal advice. MmowW Scribe 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