The probationary period is an important concept in the early stages of employment relationships, offering both employer and employee the opportunity to react quickly. This article examines the probationary period, its meaning, its legal aspects and its practical consequences, while shedding light on the rights and obligations of both employer and employee.
What is the probationary period?
The probationary period is a period of time from the beginning of the employment relationship. During the probationary period, both the employee and the employer have the possibility to terminate the employment relationship immediately, without notice. The purpose of the probationary period is to give both parties the opportunity to consider whether they want to commit themselves to the employment contract in question.
From the employer's point of view, a probationary period is an opportunity for the employer to assess the skills and suitability of the employee for the job. From the employee's point of view, the probationary period is an opportunity to check whether the job matches the perception he or she had when the contract was signed.
Agreeing on the trial period and its length
The probationary period is not a mandatory condition, so it should always be explicitly agreed in the employment contract. It can always be agreed, regardless of the duration of the employment contract. A probationary period can also be agreed in a fixed-term contract.
The probationary period should always be agreed in such a way that the parties are aware of the terms of the probationary period. If no probationary period has been agreed and the employer has not referred to a probationary period under the Employment Contracts Act, there is no probationary period in the employment relationship and no probationary period can be broken.
The length of the trial period must also be agreed between the parties. The Employment Contracts Act sets a maximum probationary period of six months. In the case of a fixed-term employment relationship, the probationary period may not exceed half the duration of the employment relationship, up to a maximum of six months. If the agreed probationary period is longer than the legal maximum, the probationary period is null and void for any part exceeding the maximum.
Extending the trial period
The probationary period can be extended under certain conditions laid down in the Employment Contracts Act. If the employee has been absent from work during the probationary period due to incapacity for work or family leave, the employer is entitled to extend the probationary period by one month for each 30 calendar days of incapacity for work or family leave. The employer must always inform the employee of the extension before the end of the probationary period.
Find out more about the trial period.
Employment can be terminated during the probationary period
During the probationary period, i.e. after the start of work, both the employer and the employee have the right to terminate the employment contract with immediate effect. In this case, the termination of the employment relationship during the probationary period does not require the notice period to be observed. Termination of the probationary period must be made no later than the last day of the probationary period. The employment contract may not be terminated as a probationary period after the end of the probationary period.
Termination of employment on the basis of a probationary period does not require the normal grounds for termination. However, the employer may not terminate the employment relationship on probationary grounds on the grounds of impropriety or discrimination. Such inappropriate and discriminatory grounds include the employee's sex, age, sexual orientation, opinion, pregnancy and ethnic origin. The termination of employment during the probationary period must also be related to the purpose of the probationary period.
It should also be noted that the restrictions on probationary periods also apply to the employee. In addition, the employee may not terminate the employment contract during the probationary period on inappropriate and discriminatory grounds.
So there must always be a valid reason for a test burst. Often the reason is related to the employee's performance at work, unauthorised absences or inappropriate behaviour.
Find out more about termination of employment contract.
Notification of probationary leave
The other party must always be informed of the termination of the probationary period. If an employer terminates an employee's contract on the basis of a probationary period, the employer must give the employee the opportunity to be heard. The employee has the right to be assisted at the hearing. If, on the other hand, the employee terminates the employment contract on probation, it is sufficient to notify the employer.
Illegal probationary discharge
Probationary leave, especially on the employer's side, must be handled properly to avoid the risks associated with it. If an employer has terminated a probationary contract on discriminatory or improper grounds, the employer may have to pay compensation to the employee.
The following are taken into account when determining the compensation:
- the employer's procedure in the event of termination
- duration of employment
- the estimated duration of the period during which the worker is out of work
- loss of earnings and other factors affecting the situation
The amount of compensation is always a minimum of three months' salary and a maximum of 24 months' salary. The burden of proof is on the employee to prove that the termination of the employment contract during the probationary period was unlawful.
If, on the other hand, the employee has acted reprehensibly and caused damage to the employer in the event of termination of the employment contract, the employee may be liable to pay compensation to the employer for the damage caused.
Making sure that the employment contract is well and clearly drawn up, including the terms and conditions of the probationary period, will go a long way to avoiding ambiguity and disputes. In addition, the employer should always ensure that a probationary period termination is based on acceptable and proper grounds before proceeding to terminate an employee's contract on the basis of the probationary period.
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