What does a probationary period mean?
The probationary period is the period at the beginning of the employment relationship when the employee or the employer can terminate the employment relationship immediately and on lighter grounds than later in the employment relationship. The ultimate purpose of the probationary period is to give both parties to the employment relationship - the employee and the employer - time to consider whether the employment contract concluded meets the expectations they had at the time the employment contract was concluded.. Under certain conditions, the employer and the employee can make use of this possibility.
The probationary period must be agreed in the employment contract
In order for the employment relationship to be terminated, the probationary period must have been agreed between the employer and the employee. The probationary period is neither automatic nor compulsory. According to the Employment Contracts Act, the probationary period may not exceed six months in the case of employment contracts of indefinite duration and half the duration of the employment contract in the case of fixed-term contracts - within the six-month limit. The probationary period may also be extended under certain conditions if the employee has been absent from work during the probationary period due to incapacity for work or family leave.
If the employer is obliged to comply with the collective agreement, any provisions on the probationary period in the collective agreement that differ from those in the Employment Contracts Act must be taken into account. However, it should be noted that a mere provision in the collective agreement on the probationary period is not binding as such: the probationary period and its application must be expressly stipulated in the employment contract.
To ensure that the probationary period can be invoked later, for example in the event of a probationary period dispute, it is crucial to ensure that the probationary period is unambiguously agreed. The most typical, safest and clearest way is to include a reference to the probationary period in the employment contract.
Termination of employment during the probationary period
Once a probationary period has been agreed, it is possible to terminate the employment relationship with a probationary period by means of a so-called probationary clause. A probationary period can be terminated by both parties, at the initiative of the employee and the employer. Termination differs from dismissal in that the employment relationship ends immediately on the date of termination, whereas in the case of dismissal the employment relationship ends only after the notice period.
Employment contracts may not be terminated for discriminatory or inappropriate reasons during a probationary period
The Employment Contracts Act does not specify the specific conditions for terminating a probationary period, but only states that an employment contract may not be terminated for discriminatory or otherwise inappropriate reasons in relation to the purpose of the probationary period.. Discriminatory grounds include age, health, ethnic origin, sexual orientation, opinions and other discriminatory grounds mentioned in the law. The range of discriminatory grounds is more diverse. For example, dismissal from probation without a reason based on aptitude, too short a period for induction training or lack of trust due to an act committed during leisure time have been considered by case law as inappropriate grounds for dismissal in relation to the purpose of probation. Examples of typically acceptable and appropriate grounds for termination include lack of cooperation, shortcomings in work performance, unauthorised absences and general lack of integration in the workplace.
Break in probationary period at the initiative of the employee
Usually, the probationary period is broken by the employer, but sometimes it is also initiated by the employee. When considering a probationary period, the employee should therefore bear in mind that, for example, getting a new job - which the employee considers to be a better job - is not a valid reason for a probationary period. The probationary period is not intended to enable the employee to look for a ”better job”. This has been confirmed by case law.
You can terminate your employment during the probationary period on lighter grounds than later on
To sum up, it is possible to terminate an employment relationship during a probationary period on much lighter grounds than after the probationary period. It is important to note that the reason for the probationary period must be job-related and related to the purpose of the probationary period. Although the probationary period may create uncertainty, especially for the employee in the initial phase of the employment relationship, the use of a probationary period is justified. The probationary period allows both the employer and the employee to examine whether there are conditions for the employment relationship and cooperation. The probationary period allows the employer to see whether the employee is suitable for the job for which he or she has been selected. The employee, in turn, can assess whether the job meets his or her own expectations.
If you are worried about the probationary period, consulting a lawyer is usually a good way to make sure that both the terms and conditions of the probationary period and any probationary breaks are in line with the law.
Article written by a legal scholar Santeri Valkamo. You can always call him free of charge on 010 299 5090. You can check our price list Here. This article has been updated 21.4.2023