Termination during the probation period: everything you need to know

The definition and meaning of the probation period

The probation period is a period at the start of an employment relationship that is set out in the employment contract. During this period both the employer and the employee can put the working relationship to the test. The probation period usually lasts between three and six months. It can, however, also be agreed as considerably shorter or longer. What makes the probation period special are above all the simplified termination rules and the notice period. During the probation period this is reduced to 14 days. 

The purpose and function of the probation period

Testing suitability: 

The employer can use the probation period to find out whether the employee fits the company. What matters most here are the employee's professional and social skills. 

Settling in for the employee: 

The employer of course has the same options. They can use the probation period to get to know the team and the working conditions better. The adjusted termination rules give them the chance to decide more easily whether they want to stay in the long term. 

Easier termination: 

Both sides have more flexibility in this phase. If either side is unhappy, the employment relationship can be ended more quickly. The usual, longer notice periods do not have to be observed. 

Termination during the probation period

The probation period is an important topic precisely because of its adjusted termination rules. So let us turn straight to protection against dismissal during the probation period. 

Incidentally, we have already covered termination and protection against dismissal in general here. 

What does “14 days' protection against dismissal during the probation period” mean?

During the probation period a notice period of 14 calendar days applies. That means the employment relationship can be terminated during the probation period with 14 calendar days' notice. This period applies to the employer as well as to the employee. But it only applies as long as nothing else is set out in the employment contract or in a collective agreement. 

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What are the most important points about the 14 days' protection against dismissal during the probation period?

The 14 days' protection against dismissal during the probation period works somewhat differently from the statutory protection against dismissal of 4 weeks. 

1. Calendar days, not working days: The 14 days are calendar day. So weekends and public holidays are included too. 
2. Start of the notice period: The notice period starts on the day after notice is given. That means if notice is served on the 3rd of a month, for example, the employment relationship ends 14 days later, so on the 18th. 
3. Legal basis: The notice period is set out in Section 622 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). During the probation period, from a legal point of view the employment relationship can be terminated with a shortened notice period of two weeks. 

Can you terminate at any time during the probation period? 

For employees the rule during the probation period is: you can always resign. You do not even have to give a reason. 

In theory the same applies to the employer. If you are not happy with your new employee, you can simply give notice without stating a reason. However, there are still a few things you have to bear in mind: 

1. You may not give notice at an inopportune moment. Even during the probation period, dismissing staff at an inopportune moment is not allowed. So you should always make sure the employee is not under particularly heavy strain. A death in the family, for example, counts as particularly heavy strain. 
2. Discrimination is not a reason for dismissal. Do you want to dismiss an employee because of their political or trade union activities? Or you do not like your new employee's gender or sexual orientation? Dismissal on any of these grounds is never allowed, not even during the probation period. 
3. Certain groups of people are under special protection. Pregnant women, and people with severe disabilities enjoy special protection against dismissal even during the probation period. Pregnant women may not be dismissed during the probation period either. People with severe disabilities are, admittedly, only covered by the statutory protection against dismissal of 14 days during the probation period, but even during the probation period they may not be dismissed because of their disability. 

Vacation and illness during the probation period - what you need to know 

Do I have a vacation entitlement during the probation period? 

There is a stubborn myth about vacation during the probation period: supposedly vacation is not allowed during the probation period. What is true is that in principle a vacation entitlement only arises after six months. Before the end of the first six months there is only a pro rata vacation entitlement for each month worked. 

In practice that means that up to the sixth month you can only take the vacation you have already earned. With a contractually agreed vacation entitlement of 24 days you have a vacation entitlement of 2 days per month. So from the 2nd month you could already take two days of vacation, and so on. From the sixth month onwards, which is also after the maximum length of the probation period, you are then entitled to your annual vacation. After six months working at the company you can therefore take the full 24 vacation days. 

The bottom line is that you can definitely take vacation during the probation period. Your vacation entitlement grows with every month you work. If you still want to claim more vacation days early on, you have to agree that with your employer. 

What happens if I fall ill during the probation period?

Even during the probation period, employees are entitled to continued pay in the event of illness. However not in the first four weeks. If you fall ill during these first days, you are not entitled to continued pay from your employer. You can, however, receive sickness benefit from their health insurance fund. Even during the probation period, a doctor's certificate has to be provided after three days of illness at the latest. 

What matters is this: your employer can dismiss you because of a common cold. But if they suspect a long-term absence due to a serious illness, they have the right to give notice. 

Extending the probation period: is that possible? 

In principle a probation period may not last longer than six months. However, the probation period can be extended if it was shorter than six months from the outset. 

So if you have a contractually agreed probation period of three months, it can be extended to up to six months. That does not happen automatically in the case of vacation or sick leave notification. An extension always has to be agreed. 

Efficient time tracking with clockin: how to handle the probation period in a legally compliant way

During the probation period, precise time tracking and clear documentation of working hours are decisive – for employees as well as for employers. With digital time tracking from clockin, both sides benefit from clear and traceable working time records. With terminations during the probation period in particular, complete working time tracking can play an important role in avoiding misunderstandings.

Benefits of clockin during the probation period:

• Simple and accurate time tracking: Employees can record and prove their working hours to the minute, which is particularly relevant when calculating remaining vacation or overtime.
• Legal compliance: In the event of a termination, employers can easily use clockin's working time tracking to document whether the contractually agreed working hours were met. That is an important point in avoiding legal disputes.
• Transparency for both sides: Employees always keep an overview of the hours they have worked, while employers can spot any absences quickly and transparently.