How to defend termination during the probationary period

Arrangement and length of probationary period

The probationary period will most often be set out directly in the employment contract. However, it can also be agreed after the contract has been concluded, but no later than the day you start your new job. The probationary period must always be agreed in writing, a verbal agreement is not sufficient. Once agreed, the probationary period cannot be extended (however, by law it is extended for work-related obstacles, typically illness of the employee).

A probationary period cannot be agreed when changing jobs with the same employer. In this case, it is expected that both parties already know what they can expect from each other. Also, a probationary period can only be negotiated for an employment relationship, so it is not possible for an employment or performance agreement.

The Labour Code stipulates that the probationary period may not exceed three months from the date of employment. For managers, the probationary period may be up to six months. The probationary period is generally calculated in whole months, regardless of whether the month has 28, 29, 30 or 31 days. Only if the employment relationship does not start on the first day of a month but on another day, we will count the probationary period from the following day.

So how does it work in practice? Ms Kamila joined her employer on 15 January 2022 and has an agreed probationary period of three months. Her probationary period starts on 15 January and ends on 14 April 2022.

Termination during the probationary period

If the employer or the employee concludes that the agreed employment relationship is not suitable for them, they can terminate the employment relationship during the probationary period very easily. Termination during the probationary period is possible for any reason or for no reason at all. In this case, the termination of the employment relationship is often referred to as termination of probation.

There is no limit to the amount of time an employee can be terminated during the probationary period. The Labour Code provides only one limitation for termination during the probationary period by the employer , namely during the first 14 calendar days of incapacity for work. If the employee is dismissed in order to avoid the obligation to pay him wage compensation, the dismissal would be invalid. As long as the employee is not incapacitated, the employer can terminate the employment relationship at any time and for any reason. In addition to incapacity for work, a pregnant woman cannot be dismissed because she became pregnant during her probationary period (or the employer discovered that she was pregnant). This would constitute discrimination. But he can dismiss her for other reasons, such as poor work ethic.

Notice of termination during the probationary period must be in writing and signed. It must be clear who is giving it and to whom it is addressed. If you do not comply with the written form, the notice will not be taken into account and the employment relationship will continue. The employment relationship will end on the date the notice of termination is served during the probationary period, unless a later date is specified. This may result in the employment relationship being terminated from one day to the next.

The service of a notice of termination during the probationary period is one of the most common problems that arise in practice. It is not enough for the employer to simply write the document down – the moment when it is actually delivered to the employee is crucial. The employment relationship usually ends on that date, unless the document specifies a later date.

The termination of the employment relationship may be delivered in person at the workplace, by post or via a data box if the employee has agreed to it. If the employee does not take delivery of the document, a so-called fiction of service may occur, whereby the document is deemed to have been delivered even if the addressee has not actually received it. However, this applies only if the statutory conditions are met.

In practice, it often happens that the employer sends the termination of employment only on the last day of the probationary period, but the employee is not served until later. In this case, the cancellation is no longer valid because the probationary period has since expired. Proper service is therefore often the point at which the termination of employment can be effectively defended.

Even during the probationary period, it is possible to conclude an agreement to terminate the employment relationship (so-called termination by agreement). The termination of the employment relationship will then take place on an agreed date, which may occur even after the end of the probationary period.

Can the testimony be defended?

Although the employer has a very wide range of options to terminate the employment relationship during the probationary period, in practice, employers often make mistakes that can lead to invalid termination. The most common mistake is the failure to comply with the written form. A verbal notification, an email without a handwritten signature or a simple message via the employer’s internal system have no legal effect.

Another common mistake is the delivery of the termination of employment after the end of the probationary period, even if it was made earlier. It is always the moment of delivery that is decisive, not the date of the document. Employers also often make the mistake of dismissing employees in the first 14 days of sick leave, when the law expressly prohibits termination of employment.

Invalidity can also arise if the real reason for termination is discrimination – typically pregnancy, parenthood or disability. In such a case, the employee can claim not only continuation of the employment relationship but also compensation for wages.

Given the broad possibility of terminating employment during the probationary period, it will not be common for such termination to be invalid. However, this is also possible if the termination notice does not meet the formal requirements, or if it is delivered after the end of the probationary period. A notice given by the employer during the first 14 days of the employee’s incapacity for work will also be invalid.

If the employer has invalidly terminated the employment relationship during the probationary period, the employee must notify the employer in writing that he or she insists on continued employment. In this case, the employer must compensate the employee for the wages, even if the employee did not perform any work.

If the employer does not accept the employee’s objection that the termination is invalid, the employee will have to go to court. The action must be brought within two months of the date on which the employment relationship should have ended. This deadline cannot be waived.

If the probationary employment relationship was terminated invalidly and the employee did not notify the employer that he/she insists on continuing the employment, then he/she is entitled to wage compensation only for the period of notice, i.e. two months. It should be borne in mind that even in the case of invalid notice, it is always up to the employee to assert his rights. Otherwise, the employee will be deemed to have accepted the notice and the employment relationship will end.

We do not recommend the use of model termination notices and agreements. The model notice available for free download may not meet your needs and, in particular, may not be in line with the current wording of the law. Such a notice may be invalid, which may involve a number of complications and, above all, liability to the other party.

Pitfalls of working under the table

Some employers try to abuse the probationary period by letting employees work without a properly concluded employment contract with the promise that “it will be drawn up soon”. However, this practice is highly risky and can be considered illegal work. In such a case, the employee exposes himself not only to the loss of protection under the Labour Code, but also to possible sanctions by the control authorities.

Moreover, without a validly negotiated employment contract, there can be no probationary period at all. If the employer subsequently “terminates the cooperation”, this is not a termination during the probationary period, but a de facto termination of the illegal employment relationship. The employee then has to assert his rights in a more complicated way, often by proving the existence of the employment relationship retrospectively.

Summary

The probationary period serves to verify whether the employment relationship is satisfactory for both the employee and the employer and therefore allows for its rapid termination, but only if the legal conditions are met. It must be agreed in writing at the latest on the date of commencement of employment, can last for a maximum of three months (six months for senior employees), cannot be agreed for agreements or changes of position, and is extended by law to include full days’ absence and holidays. The employment relationship can be terminated at any time during the probationary period without giving any reason, but the termination must be in writing and delivered to the employee during the probationary period, otherwise it is invalid; moreover, the employer may not terminate the employment relationship during the first 14 days of the employee’s incapacity for work and may not discriminate, for example on the grounds of pregnancy. If the termination of the employment relationship during the probationary period is invalid, the employee must give written notice of his or her insistence on continued employment and, if necessary, defend himself or herself by bringing an action in court, which must be filed within two months of the date on which the employment relationship should have ended, otherwise his or her claims will be extinguished. At the same time, without a valid employment contract, there can be no probationary period at all, and working ‘under the table’ poses a significant legal and financial risk to the employee.