Dismissal During the Probationary Period: What Employers Need to Know

Disnissal during the probationary period
Liz is Head of Legal at twinwin.
As an expert in employment law, Liz enjoys sharing valuable legal knowledge with HR professionals, enabling them to avoid costly legal mistakes. Her mission at twinwin is to make employment law easy for HR.

Although it is not mandatory, many fixed-term and permanent employment contracts start with a probationary period. In principle, the trial period is beneficial for both parties, as both the employer and the employee can use this time to find out whether their ideas and expectations of work match. It can be problematic if the employer finds out, for example, that the newly hired employee is not providing the desired benefit and therefore decides to dismiss him during the probationary period.

In this article, we explain what employers must consider when dismissing during a trial period and where the stumbling blocks lie.

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What is the probationary period?

Many fixed-term and permanent employment contracts start with a so-called probationary period. This is a period in which the notice period is reduced (Section 622 (3) Civil Code (BGB)). This time is often used primarily as a kind of “test phase.” It is intended to give the employer and the employee the opportunity to get to know each other and to check whether they fit together and whether the expectations of the position and the working environment are met. 

However, a trial period is not required by law. As a rule, the employer decides whether there is a probationary period at the start of the employment relationship. However, the employer and the employee must specifically agree on a trial period and its duration in the employment or collective agreement.

 

How long is the trial period?

As a rule, the employer and the employee specify in the employment contract exactly how long the probationary period should last. Only the maximum period of the probationary period is regulated by law and this may be after Section 622 (3) BGB maximum six months amount to.

Used for a fixed-term employment If a trial period has been agreed, the length of the trial period must be proportionate (Section 15 Paragraph 3 Part-Time and Fixed-Term Employment Act (TzBfG)). The appropriate maximum duration of the probationary period for fixed-term employment contracts has not yet been finally clarified by the court. Rather, different circumstances play a role in the question of proportionality, such as the type of activity or practice in the sector. Assuming that an employment contract is limited to six months, the probationary period should not also be six months. In such cases, the protection against dismissal would be circumvented and the agreement would be ineffective. The situation is different (in contrast to an employment contract), for example, in vocational training, where a probationary period of at least one and a maximum of four months is required by law.

According to the new Section 15 (3) TzBfG, the duration of the probationary period is to be measured by the length of the fixed-term contract: The probationary period must therefore be proportionate to the duration of the fixed-term employment relationship. The law does not say which deadlines are to be regarded as proportionate. However, it can be cautiously assumed that a Time frame of one third to one quarter of the duration of the employment relationship as appropriate viewed will. Case law will have the last word on this issue.

Can the trial period be extended retrospectively?

However, sometimes the agreed trial period is not enough to be able to correctly assess the performance of a new employee. This may be the case, for example, if the newly hired employee is still absent due to illness for a longer period of time during the probationary period. But maybe the employer doesn't want to fire the new team member yet, but rather give him another chance to prove himself. This often raises the question of whether the trial period can be extended retrospectively.

Was in the employment contract a shorter trial period than six months agreed, a subsequent extension is generally possible. However, this is only possible with the consent of the employee, as the contract must be amended.

A trial period cannot be extended over a period of six months. This primarily serves to protect employees and is intended to prevent the protection against dismissal and thus the law from being circumvented. In fact, does the employment relationship last longer than six months (so-called latency) and if the company employs more than ten employees, the Dismissal Protection Act applies, with the result that an employment relationship can only be terminated by employers taking into account one of the three reasons set out in the Act, provided that the other requirements are also met. The trial period must therefore be differentiated from the waiting period. 

There are no legal regulations that provide for the extension of the probationary period due to a prolonged absence. However, certain practices have developed in practice which should make it possible to get to know and review the employee's performance further. 

In this case, the employment relationship is terminated before the end of the agreed maximum trial period of six months. This can be done by a termination agreement, or thru eine termination take place. However, the termination does not take place with the short trial period, but with an extended period of notice. Such a period must be reasonable and manageable and must not only serve the interests of the employer, as otherwise a breach of good faith is to be assumed. The Federal Labour Court (BAG) commented on this issue a long time ago and a Notice period of three to four months declared appropriate. The termination agreement in question also included a conditional reinstatement commitment included, as an opportunity for parole for the employee. In order to avoid disputes, the employer should therefore record which requirements the employee must meet in order to pass this parole opportunity.

However, the supreme court case law on this subject is already very dated, which is why this practice is fraught with residual risks.

With regard to termination with a commitment to reinstatement and an extended period, there is still legal uncertainty about the exact requirements. The BAG has not dealt with this so far. 

Of course, even if the six-month waiting period under the Dismissal Protection Act has not yet expired, special protection against dismissal must be taken into account (e.g. in the event of pregnancy or parental leave). In these cases, termination is only possible in special cases and must be submitted to the competent authorities. 

In summary, extending the probationary period is a highly complex issue that poses numerous risks. The risks must therefore be weighed up separately in each individual case.

What is the notice period during the trial period? 

During the trial period, instead of the legal one applies reduced notice period of two weeks (Section 622 (3) BGB). The employer can therefore terminate the newly hired employee at any time within two weeks during the entire contractually agreed trial period. This means that the employer can also resign on the last day of the probationary period. It is important, however, that the employee must have received the dismissal legally during the probationary period. 

The employer can also agree on a longer period of notice during the probationary period. However, a shorter period of notice is generally not possible, unless the applicable collective agreement contains special provisions on the notice periods during the probationary period, for example when an employee is hired as a short-term temporary assistant (up to three months). For this reason, the notice periods during the trial period may differ from sector to sector. 

If no trial period is agreed in the employment contract, the new employment relationship is subject to the statutory notice periods in accordance with Section 622 BGB.

Regardless of what notice periods apply during the probationary period, the employer must continue to employ the employee for the duration of the notice period and continue to pay him the salary. Therefore, if the dismissal is received on the last day of the probationary period, he must employ the employee for another two weeks.

 

Dismissal during the probationary period by the employer 

In principle, the employer may dismiss an employee during the probationary period for no reason, but only if it is a ordinary termination acts and the employer the abbreviated two-week notice period complies.  

The reason for this is the already mentioned legal latency, which in Section 1 Paragraph 1 Dismissal Protection Act (KSchG) is regulated. The waiting period and the trial period are often equated, although these terms mean different things. This is partly due to the fact that the waiting period also relates to the first six months of a new employment relationship. However, as I said, this means the waiting period for general protection against dismissal. This only applies when the employment relationship has existed for at least six months, provided that more than ten employees regularly work in the company or company (Section 23 (1) KSchG). If this is the case, the employer's dismissal must therefore be socially justified and may only take place for operational, personal or behavioral reasons.

 

Requirements for dismissal during the probationary period by the employer 

However, despite relaxed protection against dismissal during the probationary period, employers must comply with certain legal regulations in order to be able to give legal notice.

 

1. The trial period was expressly agreed

A trial period only applies if employers and employees have it expressly agreed in the employment or collective agreement have. This is another difference from the waiting period mentioned above, which does not have to be agreed but is valid by law. If no trial period is agreed, this has no effect on the applicability of the Dismissal Protection Act, which means that termination regularly remains low-risk. However, the employer cannot then rely on a shortened notice period during the probationary period.

 

2. The probationary period may not be given arbitrarily 

Since the waiting period usually runs parallel to the probationary period, the employer does not need any reason for termination in order to end the employment relationship during the probationary period. But care must be taken here, because even during the probationary period, the dismissal must not be arbitrary or immoral. She must also not oppose the General Equal Treatment Act (AGG) violate. This would be the case, for example, if an employee is dismissed because of their origin, disability, age, specific religious affiliation, gender or sexual orientation.

 

3. The termination of the probationary period must not violate the prohibition of reprimand 

The prohibition of reprimand also states that an employee — regardless of the length of the employment relationship — must not be disadvantaged because he makes use of his rights in a permissible manner (Section 612a BGB). This means that an employer may not dismiss an employee or discriminate against him simply because he asserts his legal or contractual rights, for example. With regard to the termination of the probationary period, this means that the employer cannot use the dismissal as a means of reprimand if, for example, the employee takes part in a strike and works for better working conditions or applies for parental leave.

 

4. The works council must be consulted 

If a works council has been elected in the company or company, it must be duly informed and consulted before giving notice of termination. This also applies to termination during the trial period. However, as already mentioned, the general protection against dismissal does not yet apply in the first six months, the employer generally does not have to give any reason for dismissal if he wants to end the employment relationship. However, he must certainly tell the works council a reason for this step. Subjective assessments such as “the employee does not fit into the team” or even reduced performance are usually sufficient as grounds for dismissal during the probationary period.

 

Immediate Termination during the probationary period

What protection against dismissal applies during the probationary period? 

During the probationary period, general protection against dismissal does not apply, as the employment relationship usually has not yet existed for six months (keyword waiting period). During the probationary period, employees therefore only have limited protection against dismissal. Although they are protected against arbitrary and discriminatory dismissal decisions, they do not enjoy the full protection they enjoy after the first six months of employment.

 

What rules apply to special protection against dismissal during the probationary period?

In addition, certain groups of workers have special protection against dismissal even during the probationary period. So are pregnant women Particularly protected from the first day of employment under the Maternity Protection Act (MuSchG) and cannot be properly terminated during pregnancy and up to four months after delivery (Section 17 MuSchG). Extraordinary dismissal of pregnant women during the probationary period is also only possible in absolutely exceptional cases. Employees on parental leave are also particularly protected against dismissal, which also applies during the first six months of employment (Section 18 of the Federal Parental Allowance and Parental Leave Act (BEEG)).

 

Severely disabled workers As a rule, they also enjoy special protection against dismissal and, in the event of dismissal, the employer must involve the works council, the representatives of the severely disabled and the integration office. This Special protection against dismissal However, attacks only after a period of employment of six months (Section 173 (1) No. 1 Social Code Ninth Book (SGB IX)), i.e. only after the trial period. However, the European Court of Justice (ECJ) has ruled that employers may have to employ severely disabled employees who are no longer able to perform their original job elsewhere (Article dated 10.2.2022, C‑485/20). This also applies during the trial period and regardless of a final employment, as long as it is reasonable for the company and a suitable job is available.

 

Make another special case, as already mentioned, Vocational training contracts Dar. According to Section 20 of the Vocational Training Act (BBiG), trainees are required to have a probationary period of at least one month and may not exceed four months. The training company and the trainee determine the exact duration in the training contract. During the trial period, both the training company and the trainee can Terminate the training relationship at any time, without giving reasons and without observing a period of notice (Section 22 (1) BBiG). The termination is effective upon receipt of the notice of termination.

 

Is it possible to cancel without notice during the trial period? 

Even during the trial period, an extraordinary termination without notice is only possible for good cause (Section 626 BGB). The employer must therefore present facts on the basis of which, “taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract,” he cannot be expected to continue the employment relationship until the termination period has expired or until the agreed termination of the employment relationship. An important reason may be, for example, a serious breach of duty by the employee, such as theft, fraud, refusal to work or gross insult to a superior or employer.

 

What happens to the remaining vacation when terminating a probationary period? 

Even during the probationary period, an employee is entitled to vacation. According to Section 4 of the Federal Vacation Act (BURLG), although an employee is only entitled to full statutory annual leave after six months of employment, he acquires a pro rata claim during the probationary period. If the employer terminates the employment relationship during the probationary period, he is therefore obliged to grant or pay out the remaining vacation.

 

How do I write a dismissal during the probationary period as an employer? 

Even during the trial period, termination is only effective if it in written form is done. That regulates sect623 BGB. It is therefore not enough to send the notice of termination via e-mail or messenger to the employee to be terminated or simply to say it verbally. In addition, the notice of termination must include the following information: 

  • The clear wording that the employment relationship is terminated
  • the notice that the termination will be made in due time and the calculated termination date
  • The handwritten signature of the employer or a person entitled to dismiss, power of attorney, if applicable
  • Name and address of both parties 

Tip: If the termination of a trial period is a current issue in your HR department and you need assistance with it, feel free to contact twinwin. In our template pool, you will find a bilingual template for the probationary period termination by the employer.

Dismissal during the probationary period from the employee's perspective

There is also a shortened notice period of two weeks for employees during the probationary period (Section 622 (3) BGB), unless other deadlines have been contractually agreed. The notice period starts as soon as the notice has been delivered. 

Like the employer, the employee is not required to state the reasons for his dismissal during the probationary period, unless it is an immediate dismissal. Here are the differences between ordinary and extraordinary termination to note. However, for the work of the HR department, it can be helpful to look at the reasons for terminating a probationary period. For example, the employee's decision may be due to unmet expectations that may have been raised during the job interview. However, it is also possible that the newly hired employee realizes in the first few weeks that he is unable to develop professionally as hoped or that the corporate culture does not suit him. But personal reasons such as moving can also lead to this step. 

Regardless of whether the dismissal comes from the employee or from the employer, it is important that the separation is successful and handled professionally. The Twinwin  separation manager offers you immediate help with high-risk topics such as termination during a trial period. If your company wants to part ways with a new hire, we highly recommend that you use the separation manager. This gives you an automatic risk assessment for a possible separation as well as useful tips and best practices.