Disproportionately long probationary period in fixed-term employment – terminability of the employee

A probationary period that corresponds to the entire duration of the fixed-term employment relationship is generally inadmissible. However, if a termination option has been agreed in addition to the probationary period, the invalidity of the probationary period provision does not affect the possibility of ordinary termination. This was clarified by the Federal Labor Courtin its ruling of December 5, 2024 (2 AZR 275/23).

Facts of the case

The ruling of the Federal Labor Court is based on the following facts: The plaintiff was hired by the defendant as a service advisor/master mechanic on a fixed-term contract from September 1, 2022, to February 28, 2023. The parties' employment contract expressly stipulated a probationary period which, like the fixed term, was to run for six months. During this period, either party could terminate the contract with two weeks' notice. In a letter dated October 28, 2022, the defendant terminated the employment relationship as of November 11, 2022. The plaintiff filed an action for unfair dismissal. He argued that the termination was invalid because there was no valid agreement on the possibility of termination. The probationary period was not proportionate to the expected duration of the fixed term and the nature of the work.

Reasons for the decision

In its decision, the Federal Labor Court first states that a six-month probationary period for a six-month fixed-term contract violates Section 15 (3) of the German Part-Time and Fixed-Term Employment Act (TzBfG) and is therefore invalid. Unless there are special circumstances, the probationary period may not exceed the entire duration of the fixed-term employment relationship. In its reasoning, the Federal Labor Court refers to the wording of Section 15 (3) TzBfG, according to which the length of the probationary period must be “proportionate” to the duration of the fixed-term contract and the type of work. This allows only one interpretation, namely that the probationary period may only cover part of the fixed-term period. A reduction to the still permissible duration in order to maintain validity is not possible due to the classification of the employment contract provisions as general terms and conditions.

The invalidity of the probationary period clause does not affect the possibility, also agreed in the contract, of terminating the fixed-term employment relationship by giving notice in accordance with the provisions of Section 15 (4) TzBfG. Only the shortened notice period under Section 622 (3) of the German Civil Code does not apply, but the contract remains terminable. This applies in any case if the agreement on the possibility of ordinary termination of the employment relationship was made in addition to or in the probationary period agreement. In the present case, the provision on the right of ordinary termination is an agreement that is independent in terms of content and language, which remains comprehensible even after the invalid probationary period provision has been deleted and therefore remains valid (so-called blue pencil test).

According to the Federal Labor Court, the termination with a two-week notice period within the probationary period could be interpreted in the present case as ordinary termination at the next possible date.

Practical note

The Federal Labor Court leaves open the question of the permissible absolute or relative duration of a probationary period in fixed-term employment relationships. In any case, a probationary period that corresponds to the duration of the fixed term is invalid unless there are special circumstances. The literature assesses the question of the permissible duration of the probationary period differently. Some consider an upper limit of 25% or 50% of the agreed fixed term to be permissible; in addition, there are different time limits: Some authors advocate a maximum probationary period of less than six months in any case, while others consider a six-month probationary period to be appropriate in all cases.

For employers, the following applies: A probationary period should not correspond to the entire duration of the employment relationship. When agreeing on a fixed-term employment relationship, the length of the probationary period should be critically reviewed. Even if the probationary period is invalid, an employment relationship can be terminated with a regular notice period if this has been contractually agreed. In addition to agreeing on the probationary period, the regular terminability of the fixed-term employment relationship should therefore always be agreed in accordance with Section 15 (4) TzBfG.