Probationary period

Probationary period / Probezeit

April 04, 2024

In everyday language, the term probationary period refers to the simplified possibility of terminating an employment relationship by either the employer or the employee* by giving notice in the first six months of employment. A basic distinction must be made in employment law: There is the contractually agreed probationary period in the respective employment contract, which may not exceed six months in accordance with Section 622 (3) of the German Civil Code (BGB), but can in principle also be agreed for a shorter period. During this period, the employment relationship can be terminated by either party (employer and employee) with a notice period of two weeks. Such a probationary period is not mandatory under labour law, except for trainees (Section 20 of the German Vocational Training Act (BBiG)), for whom the statutory regulation of four weeks to four months is mandatory, meaning that a contractual agreement is generally required in order to apply it.

Less well known is the so-called waiting period pursuant to Section 1 (1) of the German Dismissal Protection Act (KSchG), according to which the Dismissal Protection Act is only applicable once the employment relationship has existed for six months. In practice, it also happens that a fixed-term employment relationship is initially concluded for the purpose of a trial period. The employment relationship then ends automatically without the need for notice of termination and can then be extended or cancelled by concluding a further contract.

Conditions of validity of the probationary period

If the employment contract constitutes general terms and conditions (GTC), the agreement in the employment contract on a shorter probationary period than 6 months is subject to the effectiveness test under GTC law in accordance with Sections 307 et seq. BGB. In particular, this means that the clause must not unreasonably disadvantage the employee. If the employment contract provides for a longer probationary period than 6 months, this is possible, but after 6 months the normal notice periods still apply in accordance with Section 622 (3), 1 BGB.

The duration of the notice period does not have to be expressly stipulated, as the two-week period in Section 622 (3) applies by law if only a probationary period has been agreed in the contract. In principle, a notice period longer than the two-week notice period provided for is also permissible, however, this extended notice period must apply to both parties and must not exceed the maximum periods in Section 622 (1) BGB (i.e. a maximum of 4 weeks to the 15th or end of a month) in order to fulfil the requirements of the GTC control.

In the case of a fixed-term employment relationship, a probationary period is only effective if its duration is proportionate to the duration of the fixed term, Section 15 (3) of the German Part-Time Fixed-Term Employment Act (TzBfG). In addition, an early termination option must be agreed in the fixed-term employment contract (this is not normally provided for in fixed-term contracts). However, this early possibility of ordinary termination is conclusively regulated by the agreement of a probationary period. If there is any doubt as to what exactly the parties intended to agree, the employment relationship is for an indefinite period with a probationary period.

Dismissals during the probationary period

During the first (maximum) six months, the employer and employee may terminate the employment contract at any time with due notice, even if the termination only becomes effective after the end of the probationary period. Objective reasons in accordance with Section 1 KSchG do not have to exist or be stated. The notice of termination must be received by the employee on the last day of the probationary period at the latest.

In the case of a vocational training relationship, the probationary period is mandatory in accordance with Section 20 BBiG, but termination is permitted during this period without notice, Section 22 BBiG

It should be noted that statutory protection against dismissal may still apply, e.g. if the employee is pregnant. There are also rules that employers must adhere to during the probationary period. Extraordinary dismissals and dismissals without notice cannot be issued without further ado. Even during the probationary period, these must always fulfil the requirements of Section 626 BGB, i.e. there must be good cause.

"Extension" of the probationary period

In principle, the maximum duration of the probationary period is set at six months in Section 622 BGB and even a contractual agreement for a shorter probationary period definitively determines its duration.

However, the employer may be able to terminate the contract with a longer notice period than two weeks at the end of the probationary period and consider the notice period to be the final "test". However, this should be openly explained and explained to the employee, especially during the probationary period, the previous dissatisfaction with the work performance and the possibility of withdrawing the termination in the event of a probationary period.

Another option for extending the probationary period is a precautionary cancellation agreement during the probationary period if the employer judges the probationary period to have failed. In this context, the employee is given a further chance to prove himself by concluding a cancellation agreement during the six-month waiting period of Section 1 KSchG, which contains a conditional promise of reinstatement. According to this, the employer undertakes to reinstate the employee if he or she achieves the necessary qualifications within a reasonable period of time (between four and six months).

And what about holiday during the probationary period?

Holiday can also be taken during the probationary period. However, employees only become entitled to the full statutory holiday entitlement after six months have elapsed since the start of the employment relationship (Section 4 of the German Federal Leave Act (BUrlG)).