Probationary period – duration and termination without causeDuring the probationary period, the employer tests the suitability of the employee. The probationary period precedes the actual employment relationship and lasts up to six months. During the probationary period, there are easier termination conditions. Even an accident at work or illness does not prevent dismissal.
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What is a probationary period??
Employer and employee can agree on a probationary period in the employment contract. This precedes the actual employment relationship and contains relaxed provisions on the notice period. During the probationary period, both parties to the contract can get to know each other. see how the cooperation works.
The Employee gets to know the working environment. The employee familiarizes himself with his field of activity and his tasks and establishes contacts with colleagues. The working atmosphere usually plays a major role in whether the employee can imagine becoming a permanent part of the company.
The employer gets an impression of the employee's professional knowledge and ability to work in a team. assesses the extent to which the employee meets the requirements and his suitability for longer-term cooperation.
If the probationary period is over, the employment relationship automatically changes to an unlimited employment relationship. Normally, employers can. Employees voluntarily agree on a probationary period. A Vocational training relationship If an Exception as. Here are mandatory a Probationary period. This must be at least one month. A period of four months is the maximum. (§ 20 BBiG)
Duration of the probationary period
The duration of the probationary period usually depends on the nature of the job. If it is a simple job, a shorter probationary period is usually agreed than for a demanding job. A Probationary period from up to 6 months is permissible. (622 Abs. 3 BGB) From the seventh month onwards, the normal notice periods automatically apply and protection against dismissal comes into effect. (In small companies there is no protection against dismissal)
1. It is possible for the employer and employee to agree on a shorter probationary period. There is no minimum duration.
2. A probationary period of more than six months is generally not possible. If a probationary period longer than six months is agreed in the employment contract, the probationary period is only effective for the first six months.
3. Collective agreements can have their own minimum or maximum limit for the duration of a probationary period.
Extension of the probationary period
If a probationary period has been agreed upon that is shorter than six months, then the contracting parties can terminate the probationary period of the extend the probationary period up to six months. This is still possible even if the probationary period is already over.
A probationary period is not automatically extended. Not even if the employee is ill during the probationary period. It must always be agreed. In addition to the normal probationary period in the case of permanent employment contracts, employers may. employees may also agree to a fixed-term employment relationship for the purpose of testing. The trial period constitutes an objective reason that justifies the fixed-term employment contract. (§ 14 para. 1 TzBfG)
The following points must be observed in the case of a fixed-term trial employment relationship:
The probationary period is as long as required for the job in question. It must not be unreasonably long. Usually, a trial period does not last longer than 6 months.
Only in the case of demanding activities is an longer trial period permissible. In this case, the reason for a long probationary period must be explained in detail in the employment contract.
A fixed-term employment contract usually expires on an agreed date. Therefore, as a rule Not the possibility of ordinary notice of termination. Unless the employer and the employee agree on a corresponding clause in the employment contract.
If the employer and employee want to continue to work together after the fixed-term probationary period, then they must sign a a new employment contract conclude.
Termination during the probationary period
The notice period during the probationary period is the same for employer and employee and is two weeks. (§ 622 para. 3 BGB) This also applies if one party to the contract terminates the employment relationship on the last day of the probationary period.
Periods of notice for termination of employment
During an agreed probationary period, for a maximum period of six months, the employment relationship can be terminated with two weeks' notice.
However, collective bargaining agreements may deviate from this provision. In this context, both a shorter and a longer notice period may be agreed.
reason for termination
If an employment relationship has already lasted longer than 6 months and the company has at least 10 employees who are employed full-time, then the Protection against dismissal. Then the Employer in the event of a notice of termination socially justified reasons specify. (§ 1 Abs. 1 KSchG). This includes personal reasons, behavioral reasons and operational reasons.
The probationary period is 6 months or less. In this period, the employee does not need factual reasons for the termination. It is therefore sufficient if the employer states as a reason for termination the unsatisfactory performance of the employee or his lack of suitability.
The employee may in principle terminate the employment without giving reasons. This also applies to the probationary period.
Extraordinary notice of termination
Employer and employee can terminate the employment relationship without notice if there is an important reason that makes further cooperation unacceptable. (§ 626 para. 1 BGB)
Termination without notice for good cause
(1) The employment relationship may be terminated by either party for good cause without notice if there are facts on the basis of which the terminating party, taking into account all circumstances of the individual case and weighing the interests of both parties, cannot reasonably be expected to continue the employment relationship until the expiry of the notice period or until the agreed termination of the employment relationship.
If there is an important reason that justifies termination without notice, then after the occurrence of the reason one must within two weeks terminate. After the expiry of the two weeks, only ordinary termination is possible. (§ 626 para. 2 BGB)
Probationary period: vacation, illness, accident
Leave during the probationary period
Employees acquire after a waiting period of six months does full vacation entitlement. (§ 4 BUrlG) But even before that, a pro rata vacation entitlement may exist. The Federal Leave Act provides that partial leave is possible under certain conditions:
(1) The employee is entitled to one twelfth of the annual leave for each full month of the existence of the employment relationship
a) for periods of a calendar year for which he does not acquire a full vacation entitlement due to failure to fulfill the waiting period in that calendar year;
b) if he/she leaves the employment relationship before the waiting period has been fulfilled
If the full vacation is 20 days, the employee shall be entitled to 1.66 days of vacation per month. After 6 months, the full vacation entitlement of 20 days is automatically granted.
If an employee acquires fractions of vacation days, these are rounded up to full vacation days, provided they add up to at least half a day. (§ 4 para. 2 BUrlG)
illness during the probationary period
Anyone who becomes ill during the probationary period must immediately report sick and have the incapacity for work certified by a doctor. (§ 5 Continuation of Remuneration Act) In fact, even in the case of illness, the employer has the Right, the Employees to give notice. Termination often occurs if the employee is ill for a particularly long time or very often during the probationary period. Since the Protection against dismissal nor not effective is, the employer does not have to justify the dismissal. A notice period of two weeks usually applies to a termination during the probationary period.
Furthermore, the employee should note the following:
1. The employee should give the employer the sick note on time.
2. The employee is only entitled to continued payment of wages if the employment relationship has already lasted longer than four weeks. Before that, he is only entitled to sick pay from the health insurance fund.
3. The entitlement to continued payment of wages exists for 6 weeks.
accident during the probationary period
If an employee suffers an accident at work during the probationary period, the employer is Employer nevertheless the right to use it terminate. Unless the reason for the accident is due to gross negligence on the part of the employer.
Termination during the probationary period only requires a reason that shows that it is not being carried out arbitrarily. The employee may cite, for example, the employee's lack of teamwork skills. In principle, a termination in this context is only inadmissible if the reason is immoral (§ 138 BGB), discriminatory or in breach of trust (§ 242 BGB).
Probationary period: special cases
Probationary period for pregnant women
If a woman is pregnant, she also in the Probationary period special protection against dismissal. According to the Maternity Protection Act, the employer is allowed to dismiss her during her pregnancy. Do not give notice during the protection period thereafter. (§ 17 (1) MuSchG)
If a woman is pregnant, she does not have to inform the employer immediately. However, if the employer terminates her employment, she must inform the employer of her pregnancy within two weeks in order to object to the termination. In this context, it is important for the expectant mother to show that she was already pregnant when she received the termination notice.
In exceptional cases the employer may terminate a Pregnant woman can terminate. The reason must be outside the pregnancy. In addition, the supreme state authority or a body designated by it must declare the termination admissible.
Probationary period for severely disabled persons
Severely disabled employees are not entitled to a notice period until they have been employed for six months Special protection against dismissal. This means that the employer can terminate the employment without the consent of the Integration Office.
Severely disabled persons do not have to inform the employer during the probationary period that they are severely disabled. With the end of the probationary period, the special protection against dismissal still applies.
Probationary period for temporary workers
If a temporary worker is employed in a company, it is not done by an employment contract, but by a transfer contract. This is agreed between the lender and the employee. hirer to terminate. If the hirer, i.e. the employer, wants to employ the temporary worker permanently, he concludes an employment contract with the temporary worker.
The previous time in the company is not taken into account. Therefore, they can agree on a probationary period even if the scope of duties does not change. Furthermore, there is protection against dismissal only after six months.
Probationary period – law explained simply
What is a probationary period?
A probationary period is for the employer and employee to check in the initial period whether the cooperation will work in the longer term. If it does not work, both can terminate the contract during the probationary period with a notice period of two weeks. Otherwise, the probationary period automatically turns into a permanent employment relationship.
Read more: What is a probationary period?
How long does a probationary period last?
A probationary period of up to 6 months is customary. Longer it may not be by law. However, a shorter probationary period may be agreed in the employment contract. Collective agreements may stipulate a separate minimum-. The maximum limit of the probationary period is. It is also possible to extend a probationary period within 6 months.
Read more: How long does a probationary period last?
Am I entitled to vacation during the probationary period??
The full vacation entitlement normally only arises after six months have elapsed. However, entitlement to partial leave is also possible. Namely, if the employee or the employer terminates the employment before the end of the probationary period. Or if the trial period begins in the second half of the calendar year. The employee is then entitled to one twelfth of the annual leave per full month.
Read more: Am I entitled to vacation during the probationary period?
Can the employer terminate me if I get sick during the probationary period?
Yes, the employer is allowed to give a notice even if the employee is sick. Since the legal protection against dismissal does not yet take effect during the probationary period, the employer does not have to justify a dismissal. A disease also does not affect the notice period. This is two weeks in the probationary period.
Read more: Can employer terminate me if I get sick during probationary period?
Can the employer terminate me in the probationary period if I am pregnant?
No. Because special protection against dismissal applies to pregnant women even during the probationary period. If a woman is pregnant, she does not have to inform the employer about it. However, if a termination occurs, then the expectant mother must inform the employer that she is pregnant so that she can object to the termination. This is what it must do within two weeks after receiving the notice.
Read more: Can the employer terminate me during the probationary period if I am pregnant? The information provided on this website is only general information. Do not replace professional legal advice. Any liability for accuracy, completeness and timeliness is excluded.