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It is common for employers and employees to agree on a probationary period in the employment contract. The employee can check whether the type of work, place of work and the wage or other working conditions suit them, while the employer can use the probationary period to assess whether the employee is meeting its expectations. During the probationary period, each party can decide whether they wish to remain in the employment relationship or to terminate it.
The Labour Code sets out the conditions under which a probationary period may be agreed. The probationary period may be agreed in writing no later than on the day of commencement of work and may not be extended subsequently. The maximum length is three months, but it can be up to six months for managing employees. However, the probationary period may not be longer than half the agreed duration of the employment relationship. To ensure that the probationary period serves its purpose well, it is extended by law by the period of full-time absence from work and the period of full-time leave. Therefore, it is not practical to agree on a fixed date for the end of the probationary period, because then whole-day obstacles to work or leave (absence) could not extend it.
Cancellation of employment during the probationary period must be in writing, otherwise it will be disregarded. The Labour Code prohibits an employer from terminating an employee's employment during the probationary period within the first 14 calendar days of the employee's temporary sick leave (quarantine).
In general, both the employer and the employee may terminate the employment relationship during the probationary period for any reason or for no reason at all. However, in the light of recent Supreme Court case law, this rule has ceased to apply. Although this is a simplified way of terminating an employment relationship, such an act must also be measured from the point of view of non-discrimination and equal treatment, as can be seen from the following case law.
The first time the Supreme Court stated that the termination of employment during the probationary period should be measured in terms of the non-discrimination rules was in a decision issued in 2009 (Case No. 21 Cdo 2195/2008).
However, last spring the Supreme Court issued a rather surprising decision in the case of a pregnant forestry worker whose employer terminated her employment during the probationary period without giving any reason (21 Cdo 2410/2020). The employer and the employee had agreed on fixed-term employment from 1 March 2018 to 30 November 2018 with the type of work listed as forestry worker, and had also agreed on a three-month probationary period. In April of the same year, the employee informed her manager that she was pregnant and requested to perform alternative work. The employee's manager informed her that he did not have alternative work for her and referred her to the company doctor, who subsequently issued a medical report stating that the employee was no longer fit to work as a forestry worker because the job involved heavy manual labour and working with chemicals that could endanger the foetus. Based on that medical opinion, the employer terminated her employment during the probationary period "without giving any reason".
In the case law in question, the Supreme Court expressed the opinion that although an employer may terminate the employment relationship during the probationary period even with a pregnant employee, it may not do so for reasons related to her pregnancy, because in such a case it would constitute impermissible discrimination. Consequently, the termination of the employment would be null and void and the employee could seek protection against discrimination by the legal means provided for in Section 10 of the Anti-Discrimination Act. This includes the right to demand that the discrimination be abandoned and that the consequences of the discriminatory intervention be eliminated, as well as the right to adequate compensation.
This applies not only if the employer explicitly cites the employee's pregnancy as a reason for terminating the employment during the probationary period, but also if the employer does not state the reason in writing or states another reason contrary to the facts.
Even when terminating employment during the probationary period without giving a reason, employers must be very careful not to violate the prohibition of discrimination, and the decision to terminate employment must not be linked to any of the discriminatory grounds, namely sex (which includes pregnancy as well as maternity, paternity or gender identification), sexual orientation, racial or ethnic origin, nationality, citizenship, social origin, lineage, language, health, age, religion or belief, property, marital or family status and relationship or obligations to the family, political or other opinion, membership and activity in political parties or political movements, trade unions or employers' organisations.
author: Marie Gremillot
Attorney at Law