2 November 2020
The trial period (or probationary period) is a period of time during which the employer and the employee can check, more or less without obligation, whether the employment contract is satisfactory.
If not, they can terminate it immediately. Strict requirements apply, because the employee is “free as a bird” and can terminate the employment with immediate effect at any time during the trial period.
A trial period must be agreed in writing. How long the trial period may last depends on the duration of the employment contract and whether a (generally binding) Collective Labour Agreement applies.
If the employment contract has a duration of six months or less, then no trial period may be agreed. The trial period for a fixed-term contract of up to two years may be a maximum of one month. A trial period may never be longer than two months for other contracts. Further, an agreed trial period is only legally valid if it is the same for both parties.
The terms of a trial period are strict; there is a so-called “iron term” of two months. If an incorrect term has been agreed, for example a trial period of 3 months, the penalty is that no trial period applies at all. Even if the agreed period is insufficient for the employer, for example because the employee falls ill, extending the trial period is not possible.
In addition, no trial period can be stipulated if the employer is already aware of the employee’s skills. This is the case, for example, if the employee already works for the employer or has been employed previously. This applies even if the employee has previously worked for another employer, but that employer’s knowledge of the employee’s skills is attributable to the employer. This is the case, for example, with two successive employers in the same group of companies or with a transfer of undertaking.
A trial period clause is also not valid in the case of a restart after bankruptcy. In these cases, it must be the same function and tasks. If the job involves clearly different tasks, it is possible to agree on a trial period again, also with the same employer. In such a case, the employee would be wise to stipulate that they may return to the old position if they do not meet the trial period.
There are few restrictions for the employer in case of dismissal during the trial period. The main limitation is that the dismissal must not violate the prohibition of discrimination. For example, an employer may not fire their employee because she is pregnant. An employer who abuses the trial period may also be liable for compensation in certain cases. It is up to the employee to prove that the employer is abusing the trial period.
An employer who decided after one day that a management assistant was not suitable for their position was sentenced by the subdistrict court to pay compensation to the employee, because this could not be decided in one day, according to the subdistrict court.
It is not always so obvious that the trial period has been abused. If requested, the employer is obliged to state in writing the reason for the dismissal. As an employer, it is sensible to always give a neutral reason for dismissal during the trial period, for example by indicating that the employee does not fit in the team.
The employee can also terminate the employment contract during the trial period. Under certain circumstances, this may be unlawful, but it follows from case law that this cannot easily be the case. However, an employee who terminated the contract during the trial period because they received a better offer from their old employer was sentenced to pay the costs incurred by the employer for the medical examination and the psychological test.
If one of the parties wishes to terminate the employment contract during the trial period, the termination must take place no later than the last day of the trial period.
If one of the parties wishes to terminate the employment contract during the trial period, the termination must take place no later than the last day of the trial period. If the employer informs the employee on the penultimate day of the probationary period that they wish to terminate the employment contract with effect from the following week, the probationary period will not be terminated and the employment contract will continue as usual.
A probation clause is not mandatory. As an employee, you can try to negotiate the probationary period.
Do you have a question about this topic? Please do not hesitate to contact me.
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