When is the trial period reasonable?

The implementation of Working conditions policy is often related to the adaptation of prove law been equated. On the other hand, less attention was paid to the fact that the directive has also led to adjustments in other laws. A practically very relevant change is in section 15, subsection Part-time and time-limited law to find. According to this provision, since 1 August 2022 it has been necessary for a fixed-term employment contract to have an agreed trial period in relation to the duration of the restriction and the nature of the activity. What does it mean and what are the consequences if the probationary period is not proportionate?

starting situation

Within the first six months of an employment relationship, the employer and the employees have the opportunity to “test” each other. This intention is expressed in a large number of regulations. Most importantly, that Act on dismissal protection can only be used if the employment relationship has lasted for more than six months. After this term expires, it may be necessary for a general termination to be for a personal, behavioral or operational reason. Furthermore, the special protection against dismissal of a severely disabled person only comes into effect after the end of the six-month waiting period. In this context, section 622, subsection Civil Code classify The provision stipulates that termination during an agreed trial period – which lasts a maximum of six months – is possible with a shortened notice of termination.

With regard to an agreed trial period, the newly introduced section 15, subsection Part-time and time-limited law To consider. This arrangement, as a result of the implementation of Working conditions policy was introduced into German law, allows for fixed-term employment contracts: An agreed trial period must be commensurate with the duration of the restriction and the type of activity. However, the law does not reveal when the probationary period is proportionate.

When is the trial period reasonable?

There is already broad agreement that the possible trial period in a fixed-term contract can no longer be used up in full, and that a six-month trial period can no longer be reflexively agreed in a fixed-term employment contract. Apart from this constellation, the legal situation is unclear. And until a final clarification through case law, there is legal uncertainty as to whether an agreed trial period in a fixed-term employment contract is still proportionate in a specific case or not. Despite the existing legal uncertainty, waiting for final clarification from case law will not be an option for those working in the human resources field.

However, there is a point of reference that offers HR professional assistance. The legislative process regarding Working conditions policy contains at one point an indication of the European legislator’s view of proportionality. In an amendment to the recitals in Working conditions policy As a guideline, the trial period for a fixed-term contract of up to 12 months should not exceed a quarter of the duration of the employment relationship. This indicative value was neither included in the standard text nor in the recitals. Nevertheless, an initial orientation for the permitted future design options can be derived from this. According to this guidance, the probationary period can be a maximum of one and a half months for an employment contract limited to six months and a maximum of two months for an employment contract limited to eight months.

These lengths of sample periods, which are derived from the reference value, can provide a useful initial orientation. However, more is not possible in this way, since the proportionality of the probationary period according to § 15 in subsection Part-time and time-limited law depends not only on the duration of the deadline, but also, as is well known, on the nature of the activity. There are good reasons why the following factors should be taken into account in the proportionality test:

  • degree of difficulty and responsibility for the activity,
  • Classification of the employee in the company hierarchy – with or without management responsibility – and the area of ​​responsibility,
  • the length of the training period,
  • The employee’s work experience.

On the basis of these criteria, among other things, a proportionality test must be carried out on a case-by-case basis, which can justify a deviation up or down from the reference value.

This is a major innovation for German legislation. In its judgment of 24 January 2008, the Federal Labor Court had refused to determine whether probation was appropriate on a case-by-case basis. For fixed-term employment contracts, this jurisprudence has been obsolete since 1 August 2022.

What happens if the trial period is unreasonable?

If a fixed-term employment contract concluded since August 1, 2022 allows for a trial period that is no longer commensurate with the duration of the restriction and the type of activity, the trial period agreement is invalid.

The related legal consequence, which is obvious at first glance, is that the employment relationship does not end with the shortened notice period according to section 622, subsection Civil Code can be terminated. The ineffectiveness of the probationary period, on the other hand, has no influence on the waiting period in relation to the applicability of Act on dismissal protection and special protection against dismissal for the severely disabled. Employees cannot therefore claim early protection against dismissal due to a disproportionate probationary agreement.

In my view, there is another legal consequence to be considered, which only becomes apparent on closer inspection. Many model fixed-term employment contracts used to date contain a termination clause structured roughly as follows:

“The first x months of the employment relationship are considered a trial period, during which the employment relationship can be terminated by either party with two weeks’ notice. After the trial period has expired, the employment relationship can be properly terminated by either party with the statutory notice periods. Statutory extensions of notice periods also applies in the event of termination by the employee.”

In case law and literature, it is largely assumed that a distinction can be made between agreeing a trial period and agreeing a short notice of termination. This means, according to the State Labor Court’s practice, that an agreement on a notice of termination that is too short during the probationary period – for example only one week – does not lead to the probationary agreement being ineffective (cf. State Labor Court in Hessen, judgment of 31 May 2011; State Labor Court in Rhineland-Palatinate, judgment of 30 April 2010). But if the agreed trial period according to Part-time and time-limited law is not in proportion to the duration of the period and the nature of the activity, and the probationary agreement is invalid from this point of view, in my opinion – given the above-described design of the termination regulations – this leads to the complete ineffectiveness of the agreed termination option for the period of the probationary period . And since this is a fixed-term employment relationship, this means, in my opinion, that the possibility of ordinary termination is completely excluded during the probationary period.

Section 15, subsection of the Part-time and time-limited employment act. 4 makes it clear in that context that a fixed-term employment relationship can only be terminated if this is agreed in the employment contract or in a valid collective agreement. However, this is not the case with the above-described design of the termination regulations if the trial period agreement is ineffective. To avoid this legal consequence, the applicable termination provisions should be reviewed and, if necessary, revised before the next fixed-term employment contract is entered into.

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