Trial period: meaning, rights and vacation

What is the significance of a trial employment relationship?

At the beginning of a new employment relationship, the trial period is intended to give the boss a first impression of what you are doing on the spot, and to give you the opportunity to determine whether you feel comfortable in the new job.
After all, the vast majority of employment relationships are concluded for an indefinite period, with the result that in companies with more than five employees, protection against dismissal according to the Protection against Dismissal Act applies after six months. It is therefore only too understandable that employers in particular attach great importance to a more or less appropriate probationary period.

How long is the trial period?

The duration of the probationary period is usually a matter of agreement, unless collective agreements or special legal regulations (e.g. one to three months for trainees) stipulate a certain period of time. The average trial period lasts three to six months. In the case of particularly demanding jobs (e.g. in research), a probationary period can be a year.

How is the probationary period agreed in the employment contract?

There are two options:

· A probationary period can be entered into as a fixed-term employment relationship, with the prospect that, if the outcome is positive, a permanent employment relationship will follow.

· An open-ended employment relationship is entered into from the outset, in which a certain period of time is preceded as a probationary period.

The second option is of course safer for employees. After all, who knows whether the boss will actually keep his promise after the trial period, which is limited in advance, and then offer an employment relationship for an indefinite period?

A temporary trial employment relationship ends mercilessly on the agreed date - without any notice of termination. However, the boss cannot tell you on the last working day that he does not want to continue working with you.

Unless an ordinary right of termination has been expressly agreed, both sides cannot terminate the temporary trial employment relationship prematurely. However, extraordinary termination is permitted at any time.

Arbeitnehmerinnen, die während einer befristeten Probezeit schwanger werden, genießen nicht den besonderen Kündi­gungsschutz nach dem Mutterschutzgesetz. Mit Ende der Probezeit müssen sie den business verlassen.

Only if the agreed contract period has already been exceeded and the boss allows you to continue working unmolested can you insist on being taken over into a permanent employment relationship.

Rights in the event of a preliminary trial period

In the case of a trial period that precedes an open-ended employment relationship, both parties can terminate the contract with a notice period of two weeks (S 622 Paragraph 3 BGB). However, this short notice period only applies during the first six months of the employment relationship, even if a probationary period longer than six months has been agreed. Thereafter, the general basic notice period of four weeks to the 15th or the end of a calendar month applies. Other deadlines may also be stipulated in the collective agreement.

An extraordinary termination is generally permissible if there is an important reason. However, an extraordinary termination due to poor performance would be problematic. After all, you are still in the familiarization phase. Therefore, there would have to be very serious work deficiencies that make an orderly work performance impossible in order to justify an extraordinary dismissal for this reason. The employer must also hear the works council before dismissal during the probationary period (p. 102 BetrVG).

During a preliminary trial period, pregnant employees are subject to the Maternity Protection Act without restriction and therefore have special protection against dismissal.

What do you earn during the probationary period?

If you receive a collective wage, you cannot earn less during the probationary period. If you are paid above the collective bargaining agreement, some companies initially pay a little less during the trial period. You will then receive the full salary

only after. However, do not rely on verbal promises during the job interview. To be on the safe side, have the contract recorded in writing that the salary will be increased after the probationary period.

Can I go on vacation during the probationary period?

According to the Federal Vacation Act, you are only entitled to vacation after six months of service. If you leave the company beforehand, you can have your vacation entitlement paid for in cash. How much you get depends on your average income. So that could add up to a few marks.

However, you are usually not entitled to vacation pay during the probationary period. This is paid as a special bonus for loyalty to the company and must not be confused with financial vacation compensation.

What if you get sick during the probationary period?

According to the Continued Remuneration Act, all employees who have been employed in a company for at least four weeks are entitled to continued wages for a period of six weeks.

In the case of a longer illness, however, it could be questionable whether the probationary period still fulfills its actual purpose of "mutual examination". In the event of absenteeism between four and six weeks (based on a trial period of three months), the employer can therefore request that the trial period be extended accordingly. On the other hand, a one-week absence due to a cold would not be relevant.

Is there a right to a certificate?

You can request a simple reference even if you only lasted two weeks of the probationary period. However, you are only entitled to a qualified certificate after a long period of employment.

After only a short trial period, however, you shouldn't expect too much from such a testimony. In any case, it should state which tasks you were entrusted with.

When does the boss have to show his colors?

If the end of your probationary period is slowly approaching and the boss is still behind the mountain with his balance sheet, you should speak to him about your further chances on your own. Finally, in the event that you cannot stay with the company, you need to reorient yourself in good time.

If your boss only comes out with the bad news (and the resignation) on the last day, even though he never gave you the impression during the entire probationary period that he is dissatisfied with your work, you shouldn't put up with that. In this case, there is likely to be a breach of the duty of care, so that you can sue the employer for damages. Before doing this, you should definitely seek legal advice.

Trial period - important judgments

Trial period without money?
An agreement according to which an obligation to pay for a 14-day probationary period should only arise if an employment contract is subsequently concluded is immoral.
LAG Cologne, March 18, 1998 - AZ: 8 Sa 1662/97

No further probationary period for level training
When completing a so-called level training (further training following the completion of a training level with a new training contract for the training in the next level), the first training level is to be seen as the beginning of the vocational training relationship within the meaning of S 13 S. 1 BBiG. The probationary period is thus fulfilled by the probationary period agreed in this stage. The agreement of a further probationary period in the next stage is therefore not permitted.
BAG, November 27, 1991 - AZ: 2 AZR 263/91

Trial period even after poaching
In principle, the six-month trial period also applies to employees who have been poached from another company, unless this has been contractually excluded.
BAG, October 24, 1996 - AZ: 2 AZR 874/95

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