Chapters of the article
During the probationary period, the company (employer) and the employee get to know each other. The employer finds out if he or she is really interested in the employee and the employee finds out if he or she has made the right choice for the job. Both can also terminate the employment relationship for any reason, or even without giving a reason.
Length and calculation of the probationary period
According to the Labour Code, the normal length of the probationary period is(maximum) three months. In the case of managerial positions, however, it can be up to six months. However, the probationary period must always be agreed in writing; a verbal agreement is not sufficient. Once agreed, it cannot be further extended (however, it is legally extended for work-related obstacles, typically the employee’s illness).
As a rule, the probationary period is calculated in whole months, regardless of whether the month has 28, 29, 30 or 31 days. Only if the employment relationship would not start on the first day of a particular month but on another day, we will count the probationary period from the following day.
Examples of calculation
- Two workers join the same employer on 1 January 2022. Mr Karel has an agreed probationary period of three months, which expires on 31 March 2022. Mr Pavel has a probationary period of two months, which expires on 28 February 2022 and lasts 59 days. If the employer subsequently decides that it also wants to extend Mr Pavel’s probationary period until the end of March, this will no longer be possible.
- Ms. Kamila joined the same 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. Again, no account is taken of the number of days each month has.
- The Office of the Accessible Advocate has been contacted with a query by Mr Michael who has joined a consultancy as an ordinary employee and has been agreed a probationary period of 3 months. However, during this time his new boss resigned and due to Mr Michal’s previous managerial experience and quick settling in, he was offered his position. Along with this, however, the employer wanted to take advantage of the statutory option to negotiate a six-month probationary period for managerial positions and wanted to double Mr Michal’s originally negotiated three-month probationary period. We assured Mr Michal that the Labour Code does not allow for an extension of the probationary period even in the case of promotion and that if he were to resign without giving any reason during the agreed probationary period, for example after four months, it would be invalid.
Probationary period for fixed-term contracts
In fixed-term contracts, it is not so common to agree a probationary period, especially if the overall duration of the contract is shorter. However, there is nothing to prevent it. The only rule is that the length of the probationary period must not exceed half of the agreed employment relationship (the basic statutory limit of 3 and 6 months still applies). So, for example, if you sign an employment contract for four months, the probationary period can be agreed for a maximum of two months.
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What changes with illness during the probationary period?
Obviously, it is not possible to prevent illness during the probationary period. However, if the probationary period were to expire without further notice for illnesses lasting several weeks or even longer, its basic purpose would be missed. Therefore, if an employee falls ill during the probationary period, the probationary period is extended by the time not worked. So, for example, an employee starts work on 1 January and a three-month probationary period is agreed in writing. In February, the employee falls ill for a month. This causes the probationary period to end on 1 May, not 1 April.
If you are sick, your employer cannot terminate your probationary employment during the first 14 calendar days of your illness.
What not to expect during the probationary period
As mentioned once before, the probationary period is primarily for mutual understanding between the employee and the employer. It is therefore not the case that the employee has already received a personal evaluation or bonus during the probationary period. This is not excluded, of course, if the employer was already familiar with the employee’s work and “poached” him from a competitor, but it is rather an exception.
Similarly, it is not very common for an employee to take leave within the first 3 months at the workplace. However, the Labour Code does not restrict such use and does not lay down any rules other than those applicable outside the probationary period. However, the probationary period is also extended by a full day’s leave. Simply put, the entitlement to leave only arises after a certain period of service.
Itis therefore entirely up to the employer whether or not to allow the employee to take leave during the probationary period. If the employee has not yet worked enough days for the amount of leave he or she requests, it is rather unlikely that the employer will grant it.
Termination of employment during the probationary period
The probationary period is the only period within the employment relationship where the employee does not enjoy the protection otherwise afforded by the Labour Code. At least the protection against dismissal. The employer can terminate the contract without giving any reason. There is also no notice period that the parties have to comply with and no entitlement to severance pay. Of course, the employee has the same right. So you can literally throw your boss’s work on the table and tell him not to expect you the next day. As mentioned, he can do the same against you.
The notice must be given to the employee and/or the employer before the end of the probationary period. The employment relationship ends when it is served.
Any ordinary type of notice can be used as a form of notice during the probationary period, but the fact that notice can be given for any reason or for no reason at all makes little or no demands on its form. The only requirement is that it must be given in writing. It should be clear who is giving it, to whom, that it is a termination of employment during the probationary period, the date and signature.
Exceptions to the right to give notice
We have mentioned above one exception where notice cannot be given to a sick employee in the first 14 days of his illness. But what about, for example, a pregnant employee? Pregnant women enjoy special protection under employment law, both in terms of their limited ability to give notice and in terms of their working conditions.
However, they also lose this protection during the probationary period. The employer may, for example, give them notice for unsatisfactory performance or other reasons, but not because the woman is pregnant. In that case, it would be discrimination.
Similarly, if anyone is dismissed solely because of a medical condition that has been aggravated by, for example, an accident at work, the situation could be considered.
Tip: We have discussed what discrimination in the workplace means and how to defend against it in a separate article.