Probationary period
Trial period is an agreed or legally prescribed period during which a legal relationship or a granted permit can be dissolved or withdrawn under simplified conditions. The trial period serves the purpose of being able to test the suitability of the contractual partner or the test person. Trial period is a legal term from labor law , civil servant law and driving license law.
Trial period of an employment relationship
Situation in Germany
function
The probationary period takes into account the practical needs of both parties to the employment contract to test the performance of the employee on the one hand and the working conditions on the other hand in a manageable initial period of employment in order to be able to terminate the employment relationship at relatively short notice if the outcome is negative.
A trial period can but does not have to be agreed.
Design forms
There are two ways of agreeing a probationary period:
- an upstream trial period as part of an open-ended employment relationship
- a trial period in connection with a fixed-term employment relationship
Protection against dismissal
Lack of general protection against dismissal under the KSchG
In Germany, a probationary period must be distinguished from the waiting period according to Section 1 of the Employment Protection Act (KSchG). According to § 1 KSchG, you can only benefit from the general protection against dismissal under the KSchG after half a year of employment, if the number of employees required for this according to § 23 KSchG is reached.
This means that the waiver of a probationary period or a trial period shorter than six months does not automatically mean that the protection of the KSchG is brought forward. If the KSchG is to apply before the waiting time has expired, this should be expressly agreed. This can also be done tacitly ( implied ), but is associated with considerable risks in the event of a dispute. Here, too, the unnecessary question of interpretation arises as to whether the agreement of a probationary period also means the agreement of a termination option despite a time limit. A termination option should therefore be expressly agreed if there is consensus on this.
If, as an exception, a trial period of more than six months is agreed, this is irrelevant for the employee in terms of termination law. The statutory waiting period according to the Employment Protection Act cannot be extended at the expense of the employee. It is six months regardless of the length of an agreed trial period. This means that the employee in a company with more than 10 employees enjoys general protection against dismissal even after six months if a trial period of more than six months has been agreed.
Existence of special protection against dismissal
Pregnant women already have special protection against dismissal in accordance with Section 17 of the Maternity Protection Act (MuSchG) in the first six months, i.e. also during an agreed probationary period .
Need to consult employee representatives
Termination during the probationary period also requires a hearing from the works council in accordance with Section 102 of the Works Constitution Act (BetrVG) or employee representation .
The probationary notice period
The agreement of a probationary period as part of an open-ended employment relationship does not prevent the employer from terminating the contract after a shorter period than the agreed probationary period.
The agreement of a probationary period mainly and basically only plays a role for the relevant notice period. According to the legal regulation of § 622 Abs. 1 BGB, the basic notice period is four weeks to the fifteenth or the end of the month. If a trial period is agreed, this can be deviated from for a maximum of the first six months. In this case, the statutory notice period is only two weeks, unless a wage agreement effectively deviates from this in accordance with Section 622 (4) BGB. In some branches of the economy, the collective agreement trial period notice is less than two weeks. No shorter notice period than the statutory probationary period can be agreed in individual contracts, unless by reference to a collective agreement, Section 622 (4) sentence 2 BGB. For the employee, more favorable probationary notice periods may be agreed in individual contracts.
In practice it is important that Section 622 (3) BGB only provides for the possibility of agreeing a fourteen-day probationary notice period: there is no automatic. So far it has been assumed that agreeing a probationary period generally also means agreeing a shorter notice period. But this is not necessarily the case. If there is an agreement on a probationary period in one place in a general terms and conditions employment contract and the (normal) statutory notice periods are mentioned in a completely different place, this can mean that the contractual regulation is unclear and the employer does not benefit from the shortened probationary notice period comes. A shortening of the basic notice period to two weeks should, if so, always be clearly and expressly agreed.
Special features of a probationary period within a fixed-term employment relationship
In the context of a fixed-term employment relationship, three forms are possible:
- (1) (Normal case): The employment relationship is limited to the duration of the mostly six-month probationary period. Then the employment relationship ends automatically when the fixed term expires. In the absence of dismissal, the employee has no protection against dismissal, not even special protection. The parties can agree on an open-ended employment relationship for the period after the probationary period, a fixed-term employment without material reason only if the requirements of Section 14 (2) of the Part-Time and Temporary Employment Act (TzBfG) are observed. If the employment relationship continues beyond the end of the probationary period and the end of the fixed term, it becomes an indefinite one, Section 15 (5) TzBfG.
- (2) The time limit is agreed for more than six months. A trial period is agreed for the first six months (or for another period).
- Anyone who, as an employer, has a fixed-term employment contract waives the right to terminate the contract in accordance with Section 15 (3) TzBfG, unless he (or a collective agreement) regulates otherwise.
- Here, too, the unnecessary question of interpretation arises as to whether the agreement of a probationary period also means the agreement of a termination option despite a time limit. A termination option should therefore be expressly agreed if there is consensus on this.
- (3) (Trial period): The justification of a time limit is based on the necessity of a trial, Section 14 (1) Sentence 2 No. 5 TzBfG.
- A trial period in accordance with Section 14 (1) Sentence 2 No. 5 TzBfG is rather rare in practice, as the employer does not need any material reason in the first two years (Section 14 (2) TzBfG) and can use this time as a trial period. In the case of a trial period, a trial period for the first six months can also be agreed.
An extraordinary termination is always permissible.
Extension of probationary period
A trial period agreed in the employment contract can be extended up to a maximum of six months if the employer is not convinced of the employee's performance but would like to give him the opportunity to prove himself. If a probationary period of more than six months is agreed, or if the employer insists on the continuation of a six-month probationary period, this is incompatible with the law. Because from this period the protection against dismissal takes effect (§ 1 Abs. 1 KSchG), which incidentally cannot be restricted by mutual agreement. The statutory notice periods then also apply. The employee can also agree on an extension of the probationary period with the employer, for example if he is not yet sure whether he wants to work permanently in the company. Depending on whether an open-ended employment contract or a probationary period was initially agreed, different options come into consideration: The extension can be through a termination agreement with an extended termination date, a termination with an extended notice period or a further limitation.
A termination agreement with an extended termination date is most often used by employers. It still has to be closed within the probationary period and linked to a conditional commitment to reinstatement. A termination agreement that merely replaces a termination that cannot be checked for social unlawfulness in accordance with Section 1 KSchG is not ineffective because it circumvents mandatory dismissal protection regulations. If the employer regards the six-month probationary period as not having been passed, he can regularly give the employee a chance to probation without violating the law instead of terminating the employment relationship - within the period of Section 1 (1) KSchG - with the short probationary notice period by he resigns with a manageable longer notice period and promises the employee reinstatement in the event of his probation. The end of the employment relationship may not be postponed indefinitely by a multiple of the notice period.
An employment contract that is not aimed at an immediate termination, but for a limited continuation of the employment relationship, requires an objective reason within the meaning of the time limit control law to be effective . This is intended to rule out an improper use of the legal institution of the fixed-term employment contract in the form of a termination agreement. Furthermore, the termination agreement must not be subject to a condition subsequent and made dependent on an uncertain event. The purpose of the probationary extension should always be stated in the termination agreement.
Situation in Austria
The probationary period in Austria can, but does not have to be agreed. However, it can also be specified by the collective agreement. In both cases, the employment relationship can be terminated by both partners at any time during the probationary period without giving reasons. The probationary period may not be longer than one month for normal employment relationships; for apprenticeships it is limited to three months. If a longer probationary period is agreed, the remaining part is considered a fixed-term employment relationship outside of the probationary period. If no probationary period is agreed, or if the employment relationship lasts longer than the probationary period, the statutory or collective bargaining notice periods apply.
Situation in Switzerland
Without a contractual agreement, a trial period of one month applies in Switzerland. During this time, both contracting parties can terminate the employment relationship within seven days. The trial period can be extended to three months in the employment contract.
Trial period of a vocational training relationship
In Germany, a vocational training relationship within the scope of the Vocational Training Act (BBiG) begins with a trial period in accordance with Section 20 BBiG. This must be at least one month and may not exceed four months. The agreement of a shorter or longer period is ineffective according to § 25 BBiG. The agreement of a trial period of six months is therefore not permitted. The duration of the probationary period must be entered in the minutes of the vocational training contract .
The main purpose of the trial period is for the trainer and the trainee to get to know one another. The trial period is a reflection period
- for the trainee, whether he has made the right decision in choosing a career and
- for the trainer, whether the trainee is suitable for the job and fits into the business.
If the training during the probationary period z. B. interrupted by more than a third of this time due to illness, an extension of the trial period by the period of the interruption can be agreed in writing. However, the maximum duration of 4 months must not be exceeded. In the case of short-term interruptions, an extension of the trial period is out of the question.
During the probationary period, the vocational training relationship can be terminated by either party at any time without reason and without observing a period of notice ( Section 22 BBiG). The termination must be made in writing.
In training for health and nursing as well as geriatric nurse the probationary period is six months ( § 13 Nursing Act or § 18 elder care law ).
For example, the currently valid collective agreement for trainees in the public service (TVAöD) special part BBiG provides for a trial period of 3 months and, according to the special part care (TVAöD-Pflege), a trial period of 6 months.
Trial period under civil service law
The employment relationship of a civil servant on probation (BaP) serves the completion of a civil service trial period for later use for life ( § 6 Abs. 3 Nr. 1 BBG in conjunction with § 28 ff. BLV ; § 4 Abs. 3 lit. a BeamtStG ) or to transfer an office with a managerial function ( Section 6 (3) No. 2 in conjunction with Section 24 BBG ; Section 4 (3) lit.b BeamtStG ). The regular trial period for the employer " Bund " is three years. ( Section 28 (1) FSVO )
Anyone who will later serve as a judge for life or as a public prosecutor can be appointed as a probationary judge. The employment relationship as a probationary judge lasts a maximum of five years, possibly extended by the time of a leave of absence without pay. ( Section 12 DRiG ) A probationary judge can only be used at a court, at a court administration authority or at a public prosecutor's office without his consent ( Section 13 (1) DRiG ).
The Vocational Training Act (BBiG) does not apply to vocational training in a public service relationship ( civil servant on revocation in preparatory service ) .
Trial period when acquiring the driver's license
Situation in Germany
When acquiring a driving license for the first time, a two-year probationary period applies in Germany with regard to suitability for driving a motor vehicle on public traffic ( Section 2a Paragraph 1 StVG ). In the event of a serious violation ("A violation") or two less serious violations ("B violation") within the probationary period, the driver's license holder must attend a training seminar . The trial period is then extended once for two years.
If an A-violation (or two B-violations) is committed again after participating in the advanced seminar, the driver's license holder will receive a warning and be advised to voluntarily take part in a traffic psychological consultation .
After receiving the recommendation, the driver's license holder has a grace period of two months. If he again commits an A violation (or two B violations) after the deadline, his driver's license will be withdrawn. A new driving license may then be issued no earlier than three months after the revocation.
The trial period only needs to be run through once; If, for example, the driving license class A1 was already acquired at the age of 16, no further probationary period is required for driving license classes acquired later (e.g. B or A). However, possession of an AM, L or T driving license does not count towards the probationary period.
From 2003 to 2010, the new driver training ordinance gave holders of a class B driving license on probation the opportunity to shorten the probationary period by one year by attending a training seminar.
The catalog of the offenses which lead to the arrangement of an advanced seminar during the probationary period can be found in Annex 12 of the Driving License Ordinance (FeV). Whether an offense in road traffic is classified as an A or B violation and thus has an impact on the probationary period can be found in the federal catalog of offenses of the Federal Motor Transport Authority .
Situation in Austria
See multi-phase training .
Situation in Switzerland
See Green L .
See also
Web links
Individual evidence
- ↑ From the explanatory memorandum , BT-Drs. 12/4902 , p. 9.
- ↑ See BAG, judgment of February 20, 2014 - 2 AZR 859/11 -, BAGE 147, 251–266
- ↑ See BAG, judgment of 23.03.2017 - 6 AZR 705/15
- ↑ Thomas Reutemann: The probationary period. In: https://www.anwalt-arbeitsrecht-bundesweit.de . Limmer.Reutemann - Rechtsanwälte, accessed on July 18, 2019 .
- ↑ How is a trial period agreed , Formblitz
- ↑ Judgments - BAG
- ↑ Federal SME portal on labor law ( memento of the original from March 10, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Landesarbeitsgericht Baden-Württemberg from November 15, 1975. EzB No. 5 on § 13 BBiG a. F.
- ^ Federal uniform catalog of facts
