Oops! A mistake in the probationary period proves costly for the employer

A probationary period allows both employer and employee to assess within a short timeframe whether the employment relationship is satisfactory. If not, either party may terminate the employment agreement with immediate effect. Given the severe consequences of such termination, strict statutory requirements apply to the probationary period. A recent court ruling illustrates how a minor error can result in significant financial consequences. Time to outline the legal requirements once again.

Case example: three days of work, EUR 17,000 compensation
An employee had been working for three days when the employer terminated the contract, relying on the probationary period clause. The employee argued that the clause had not been validly agreed upon, and thus the employer was not entitled to terminate the contract with immediate effect.

The court found that the employment agreement was unclear about the agreed fixed duration. On the one hand, it stated that the agreement was for a period of six months; on the other hand, it specified that the agreement would end automatically on 2 July 2025, making the duration six months and two days.

The court ruled that the employee was reasonably entitled to interpret this as an agreement for six months. And no probationary period may be agreed upon for employment agreements with a duration of six months or less. As a result, the probationary clause was invalid, and the employer’s termination was deemed unlawful. The ambiguity in the contract was for the employer’s account. The employee was awarded fair compensation of EUR 17,000 gross.

Legal requirements for a probationary period clause
Key legal requirements include:

• Timing: The probationary period must be agreed upon before or at the time of concluding the employment agreement.
• In writing: It must be documented in writing.
• Equal duration: The length must be the same for both employer and employee.
• New agreement, new probationary period? A probationary period in a successive employment agreement between the same parties is, in principle, not permitted, unless the new agreement clearly requires different skills or responsibilities.
• Maximum duration:
  • Fixed-term contracts of six months or less: no probationary period allowed.
  • Fixed-term contracts of longer than six months but less than two years: maximum one month.
  • Permanent contracts or fixed-term contracts of two years or longer: maximum two months.
  • Collective agreements (CAO) may deviate, but never beyond two months.

Any deviation from these requirements renders the probationary period clause null and void. This means it has no legal effect, and neither party can rely on the probationary period. It will not be converted into a valid probationary clause. Regular dismissal protection applies.

In conclusion
While the rules on probationary periods may seem straightforward, they contain legal pitfalls. The statutory requirements are strictly interpreted by courts. This prevents misuse and ensures clarity for both parties. A formal error can result in significant costs.

Do you have questions about probationary clauses? Feel free to contact us, we would be happy to assist.