Probationary period

The purpose of the probationary period is to give the parties the opportunity to assess the employee's suitability for a particular job, more precisely whether the employees’

• health,
• knowledge,
• skills,
• abilities,
• and personal characteristics

correspond to the level required to perform the work.

During the probationary period, the employer assesses the employee's suitability to perform the agreed work, while the employee can assess their abilities and readiness to work in a specific job. The probationary period gives the parties an opportunity to find out whether the employment relationship corresponds to their will.

The maximum probationary period shall be the first four months from the date on which the employee actually takes up their duties. The employer always must notificate employee about the duration of the probationary period. For example, if the employee has a probationary period of four months, then it should be contain in written document of an employment contract

The date of the probationary period does not depend on whether or not a written employment contract has been concluded by that date. In the employment contract, the parties may agree in writing that the probationary period shall not apply or shall be shortened. A probationary period longer than four months cannot be agreed on the basis of the Employment Contracts Act.

In the case of an employment contract entered into for a specified term of up to eight months, the probationary period may not exceed half the duration of the contract. For example, in the case of a six-month employment contract, the probationary period may not exceed three months.

The employer may appoint a supervisor or mentor for the employee, who will monitor the induction of the new employee and supports them. For example, when a skilled seamstress moves from one sewing company to another, they still have to learn a lot and adapt to new technology and work rhythm.

It is recommended that at some point during the probationary period, a written mid-term review of the level achieved be made and that the employee's attention be drawn to the shortcomings. The employee must also be active during the probationary period, ask for explanations and additional instruction in work sections that still need more practice.

Which is the last day of a probationary period?

The last date of a probationary period may be agreed by the parties in the employment contract or established on the basis of the rules arising from law regarding the expiry of terms.

1. The employment contract sets out specific dates for the start and end of the probationary period. Example: The probationary period begins when the employee commences work, on 1 February 2021. The last date of the probationary period is 31 May 2021. Under such an agreement, the probationary period would end at 24:00 on 31 May 2021 (subsection 137 (1) of the General Part of the Civil Code Act). 
2. The employment contract provides for a four-month probationary period for the employee, with no end date specified. If a due date is specified by a term calculated in months, the due date is the corresponding day of the last month of the term (subsection 136 (3) of the General Part of the Civil Code Act). The Supreme Court has also repeatedly clarified that ‘corresponding day’ means the day of the event or the calendar day with which the duration of the term is fixed by law (Supreme Court judgments No. 2-17-7745, clause 11, and 3-2-1-116-07, clause 15). In the case of a probationary period, the corresponding day is the starting date of the probationary period. Example: The employee commenced work on 1 February 2021. The last day of the probationary period is 1 June 2021.

If both parties wish that the probationary period would not extend then this must be explicitly spelled out in the employment contract.

Can the probationary period be re-applied during the employment relationship?

A change in the terms of the employment contract during the employment relationship, usually a transfer to another job, does not justify agreeing a new probationary period on the employee. Before transferring an employee to another job, the employer must assess whether the employee has sufficient knowledge, skills, qualifications and, if necessary, experience to cope with the new job. However, if an employee is unable to cope with another job due to insufficient work skills, unsuitability for the job or inadaptability, there are grounds for extraordinary cancellation of the employment contract pursuant to the procedure and conditions prescribed by law.

Does the probationary period extend?

The probationary period does not include a time when the performance of the employee’s duties was hindered, above all when the employee was temporarily incapacitated for work, performed duties other than usual while working on the basis of a certificate for sick leave, or was on holiday, but other reasons that prevent the employer from assessing the employee’s suitability for work are not excluded. For example, if a new employee's employment contract states that the duration of their probationary period is four months, with no end date specified, and the employee falls ill due to which they are absent from work for a month, their probationary period will be extended by one month.

If both parties wish that the probationary period would not extend then this must be explicitly spelled out in the employment contract. For example, it may be written in the employment contract that the employee starts work with a four-month probationary period, and the probationary period includes the time when the employee was temporarily incapacitated for work, used their holiday or other grounds for refusing to perform work provided for in Section 19 of the Employment Contracts Act.

Can lower remuneration be agreed during the probationary period?

It is allowed to agree on specific wages for the duration of the probationary period. Remuneration is an agreement between the parties, so no such obligation arises from the Employment Contracts Act.

Nevertheless, the wages may not be lower than the minimum wage.

The respective agreement should clearly be regulated immediately upon concluding the employment contract. For example: the gross amount of wages for the probationary period shall be 1000 euros per month and after the probationary period 1500 euros per month (gross).