Duration of probationary period in fixed-term contracts – no fixed standard ratio

Facts of the case

The parties disputed the validity of an ordinary termination during the agreed probationary period in a fixed-term employment relationship that was set for one year. The employee had been working in customer service since 22 August 2022. The employment contract provided for a probationary period of four months, during which termination was possible with two weeks' notice. In December 2022, the employer terminated the contract while the probationary period was still ongoing. The employee considered the duration of the probationary period to be disproportionate and argued that, in the case of fixed-term contracts, a probationary period may not exceed 25% of the total duration. Furthermore, she argued that the probationary period clause would not have been divisible due to its invalidity, which consequently ruled out ordinary termination.

The decision

The Berlin-Brandenburg Regional Labour Court largely agreed with the plaintiff and also assumed a 25% standard ratio. However, in the opinion of the Federal Labour Court, there is no statutory or judicial standard ratio for the proportionality of a probationary period in fixed-term employment relationships. Rather, the assessment must always be made on a case-by-case basis, taking into account both the expected duration of the fixed term and the nature, complexity and training requirements of the job. In the specific case, the employer had submitted a detailed 16-week training plan that provided for various stages of qualification and increasing independence for the employee. The Federal Labour Court considered this to be an objective justification for a four-month probationary period being appropriate. In addition, the Senate emphasised that even a disproportionately long probationary period does not automatically lead to the invalidity of ordinary termination or to a reduction in the waiting period under Section 1 of the German Unfair Dismissal Act.

Consequences for practice

According to the BAG, there is no fixed standard ratio for agreed probationary periods. The frequently held view that a probationary period may not exceed a quarter of the contract term is incorrect. In future, courts will have to take greater account of the specific circumstances of the workplace. Employers must explain in a comprehensible manner why a particular probationary period is appropriate. Induction plans, training phases and job profiles are becoming significantly more important. Employees can continue to challenge disproportionate probationary periods. However, they can no longer argue on the basis of a blanket "standard ratio", but must explain specifically why the probationary period is too long in each individual case.

Practical tip

Employers are required to set realistic probationary periods and measure them using objective criteria such as job complexity or training scope. Structured induction plans that document the time frame and content of the qualification can be helpful in this regard. It should always be noted that the probationary period must be explicitly agreed upon in both fixed-term and permanent employment relationships. In fixed-term employment relationships, the possibility of ordinary termination must also be regulated.