Terminated During the Probationary Period

Even during the probationary period, the question of whether a termination is valid may arise.

Employers often want to get to know new employees better before offering permanent employment and, within the framework of employment law, assess how their performance, reliability, and ability to work in a team develop in practice.

This is intended to clarify whether a long-term employment relationship is desired.

For this reason, the first few months of an employment relationship are usually considered a “probationary period.” In

This article, you’ll learn when your employer is allowed to terminate your employment during this period and what else you should know about the probationary period.

1. What types of probationary periods are there?

In everyday work life, people often use the terms for different types of probationary periods interchangeably. However, it’s especially important to distinguish between a contractually agreed-upon probationary period and the legally mandated waiting period.

A contractual probationary period can be legally agreed upon in various ways:

Employees are initially hired on a fixed-term basis for a trial period. Only at the end of the fixed term do employers decide whether to offer permanent employment. The law permits such a fixed-term employment relationship because it considers a “fixed term for evaluation” to be an objective reason that entitles employers to set a fixed term for the employment contract ( Section 14(1), sentence 2, no. 5 of the German Part-Time and Fixed-Term Employment Act (TzBfG)).

The employment relationship is indefinite, but it is agreed that the first few months shall serve as a probationary period. The maximum duration here is six months. During this time, both parties are entitled to terminate the employment relationship with a (shortened) notice period of two weeks (Section 622(3) of the German Civil Code (BGB)).

However, the most common and important instance of a “probationary period” is the statutory waiting period provided for under Section 1(1) of the German Employment Protection Act (KSchG): According to this provision, the general Employment Protection Act (KSchG) applies only to employees whose employment relationship has already existed for more than six months.

During this six-month waiting period, employers may terminate the employment relationship even without cause. This greatly simplifies the process of terminating employees.

This waiting period applies automatically. Unlike other forms of probationary periods, no specific agreement in the employment contract is required.

All of the aforementioned provisions are intended to give the parties an opportunity to get to know each other first. The waiting period is therefore also a kind of “statutory” probationary period. However, the term “waiting period” is more appropriate and legally correct.

2. When exactly does the statutory probationary period begin and end?

The statutory waiting period is six months. It begins on the day the employee is scheduled to start work according to the contractual agreements. The date the contract is signed or the actual start date of employment, however, is irrelevant.

Examples:

• According to the employment contract, the start date is August 1, 2021. Since this date falls on a Sunday, the employee will not actually begin work until Monday, August 2. August. Nevertheless, the waiting period begins on August 1, 2021.
• The employment contract specifies August 15, 2021, as the start date. On that day, however, the employee is ill and is on sick leave until August 20, 2021, so the employee does not actually start work until August 23, 2021. In this case as well, the waiting period begins on August 15, 2021.
• One week after the job interview on April 30, 2021, both parties sign an May 7, 2021, an employment contract that specifies a start date of September 1, 2021. Since what matters is not the date of the job interview or the signing of the employment contract, but rather the contractually agreed-upon start date, the waiting period begins on September 1, 2021.

The probationary period ends exactly six months later, regardless of whether the last day of the period falls on a holiday or a weekend.

Examples:

• If the probationary period begins on September 1, 2021, it ends on February 28, 2022.
• If the probationary period begins on September 6, 2021, it ends on March 5, 2022, even though that day is a Saturday.
• The question of whether the probationary period is still in effect or whether protection against termination already applies depends crucially on the date the notice of termination is received. If employees receive the notice of termination on the last day of the probationary period, they are not yet protected against termination.

3. Can employers terminate the employment relationship “with immediate effect” during the probationary period?

A termination during the statutory probationary period does not mean that employees lose their jobs from one day to the next. Even in the case of a termination during the probationary period, employers must still comply with the statutory notice period.

This means that employers may generally terminate the employment relationship only with four weeks’ notice, effective on the fifteenth day of the month or at the end of a calendar month (Section 622(1) of the German Civil Code (BGB)).

Examples:

• If the employer terminates the employment relationship on August 2, 2021, the termination can take effect only as of August 31, 2021.
• If the notice of termination is received on August 4, 2021, the termination can take effect no earlier than September 15, 2021.

Please note: In most employment contracts, a contractual probationary period is agreed upon in addition to the waiting period (see above). In this case, the notice period is reduced to two weeks.

4. As an employee, do I have absolutely no protection against termination during the statutory probationary period?

Employees are not entirely without protection even during the statutory probationary period.

Although employers are entitled to terminate the employment relationship during the probationary period even without cause, a so-called “minimum protection against termination.

” Above all, this means that the termination must not be in bad faith or contrary to public policy.

Examples:

• Termination by an employer is contrary to public policy if it is intended to specifically dismiss members of a union.
• Termination is also considered contrary to good faith if employers terminate employees who, during a job interview, justifiably gave an untruthful answer to a question—which is generally impermissible— regarding a closed criminal investigation, a pregnancy, or an illness.
• A termination is in breach of good faith if employers have previously discouraged employees who were considering resigning from doing so, only to terminate their employment themselves shortly thereafter.
• A termination may also be in breach of good faith if it occurs at an “inopportune time.” This is generally assumed, for example, when employees are handed their termination notice on the same day as a serious workplace accident, while in the hospital and immediately before surgery.
• By contrast, termination is not considered contrary to public policy if employees accept a job and later refuse to work on grounds of conscience.

Furthermore, discriminatory terminations are prohibited even during the probationary period. This is particularly the case for violations of the General Equal Treatment Act (AGG).

Example: The termination is based solely on the employee’s age or skin color.

Finally, termination by an employer may also violate the so-called prohibition against disciplinary dismissal. Under this provision, dismissal may not be imposed as punishment for specific conduct on the part of the employee.

Examples:

• Employees are terminated because they are suing their employers for payment of their wages.
• The termination occurs because employees refuse to work while on sick leave.

Finally, even during the probationary period, certain employees may be subject to special protection against termination under certain circumstances. This is the case, for example, with pregnant employees. Severely disabled employees, on the other hand, must also complete a statutory probationary period (Section 173(1)(1) of Book IX of the Social Code).

Employees hired on a fixed-term probationary basis are in a particularly strong position. In principle, they cannot be terminated for cause. For this reason, this form of probationary period is not widely used.

5. What can I do as an employee if I was terminated during my probationary period?

If the termination is in bad faith, contrary to public policy, or invalid for other reasons, employees may file a claim for protection against termination with the labor court.

This also applies if you were terminated during your probationary period.

However—as with all claims for protection against termination—this must be done within a three-week deadline. This deadline must not be missed, as a claim can no longer be filed after this point.

Employees should therefore seek legal advice in a timely manner if they wish to challenge the termination.

If employees allege that the termination is contrary to good faith or public policy, they must generally also substantiate and prove this claim. However, since employees often do not know the reasons for the termination, they can, as a first step, present facts that allow the court to conclude that the termination is contrary to good faith or public policy.

Employers must then respond to these allegations and refute them.

6. Can I also receive an amount of severance pay?

If employees file a lawsuit challenging their termination, they may, under certain circumstances, also request in court that the employment relationship be terminated in exchange for an amount of severance pay. However, the court will only grant this if continuing the employment relationship appears unreasonable for the employee (Section 9(1) of the German Employment Protection Act (KSchG)).

This could be the case, for example, in instances of severe discrimination.

Furthermore, employers rarely pay severance pay for terminations during the probationary period. Severance pay is usually intended to serve as an incentive for employees to agree to a voluntary termination of the employment relationship.

During the probationary period, however, employers can dismiss employees easily and quickly without further ado. Only employees with special protection against dismissal (e.g., pregnant women) have a better chance of retaining their jobs.

7. Conclusion

A contractual probationary period may be agreed upon for a maximum of the first six months of the employment relationship. During this time, the notice period is only two weeks.

The statutory probationary period (“waiting period”) lasts six months. During this time, the Protection Against Unfair Dismissal Act does not apply, so employers do not need a reason to terminate the employment.

The statutory probationary period begins on the contractually agreed-upon start date. Despite the probationary period, dismissals that are contrary to good morals and good faith, as well as discriminatory or punitive dismissals, remain prohibited.

After receiving notice of termination, employees must file a lawsuit for protection against wrongful termination within three weeks. Severance pay is the exception in cases of termination during the probationary period.