Probationary period: the biggest mistakes – the fact check

The uncertain probationary period does not have the best reputation, but it is actually well-intentioned: employees and employers should meet under facilitated conditions – for example, with a shortened Notice period – get to know each other better and then be able to decide whether they really fit together. “The idea of the probationary period is not only that you test yourself in the job and in the new team, you should also ask yourself whether you really like the new profession,” says André Niedostadek, professor of Economic, Labor and social Law at the Harz University of Applied Sciences. He clarifies five myths and tells what to consider.

1. “No trial period agreed? Regardless, the first six months are generally considered a sample.«

There are two errors in this statement. First, a probationary period is not automatically part of an employment relationship. It must be recorded in the contract between the employer and the employee in advance.

Secondly, the length of the trial period is not always the same. “Six months to rehearse is the rule in practice, but not a must,” says law professor Niedostadek. Collective agreements sometimes provide for shorter periods, but it is also possible to extend the probationary period. In practice, however, this does not always turn out to be useful: If you are employed in a company with more than ten employees, the Dismissal Protection Act takes effect after six months, from then on an extended notice period of at least four weeks applies. In the trial period, it is two weeks.

2. ” Trial period passed? Then nothing stands in the way of continued employment.«

Even if both sides are happy, this is not a guarantee of keeping the job after the probationary period. “There can always be reasons why the employer can not take them at this moment. This is a legally absolutely legitimate,” says Niedostadek. Such a motive would be, especially in corona times, the economically precarious situation of a company. However, there is no need for a legal reason to terminate the employment relationship within the probationary period.

Nevertheless, the question of whether a successful probationary period gives rise to a claim to continued employment repeatedly concerns the labour courts. In April 2018, for example, an employee of a university complained that his faculty had not extended his employment contract (BAG – 7 AZR 311/18). The plaintiff had moved into a management position during his probationary period and was of the opinion that his previously probationary employment contract had changed into an indefinite employment relationship with his new management role. The Federal Labour Court rejected his claim. However, the fact that the man made it to the Federal Labor Court in Erfurt shows that expiring contracts after the probationary period are repeatedly discussed controversially.

3. ” Vacation during the trial period? I can’t afford that.«

Many hesitate with the question about the holiday, because they do not want to leave an unmotivated impression on the bosses. But in principle: you have the right to take a vacation – even during the trial period. 24 Days a year or two days a month are required by law – often there are a few on top. “However, a year’s full leave entitlement does not exist until six months after employment has started,” says Niedostadek. With an extended vacation, it will be tight – but with time, there is more: With a six-month trial period, you can submit four days of vacation after two months, in the end with weekends would be even more than two weeks in it.

4. ” Fell ill during the trial period? Then it is extended backwards.«

“There is nothing in the law on this, “says Niedostadek,” but it is unusual to extend the trial period because of an illness.”However, the so-called EU Directive on transparent and reliable working conditions could change this from next year. It aims to strengthen the rights of workers in the EU. It is clear from the Directive that, in the event of illness or leave, an extension of the probationary period may be considered, including short – time work. The Directive is expected to be transposed into national law by summer 2022.

5. ” Terminated during the probationary period? Then I have no chance to fight back.«

This is not necessarily so. “Actually, the highlight of the trial period is that it is easier to separate from each other. That’s why we have a shortened notice period of two weeks. Even a reason for termination is not necessary during the probationary period, ” says Niedostadek.

Nevertheless, the employer cannot afford everything: if there is a works council in the company, it must be consulted in the event of dismissal. So says the Works Constitution Act. “However, the requirements for the consultation of the works council are not too high. It is only important that the employer does so at all,” says Niedostadek. An extraordinary termination without notice is also conceivable during the probationary period. But then the employer would have to warn or have tried milder means than a dismissal-for example, the transfer to another location or to another department.

If these requirements are not met, you would actually have a trump card in your hand in court. The termination would be ineffective if necessary. For example, the Landesarbeitsgericht Schleswig-Holstein decided in June 2020 in the event of a missing warning.