The plaintiff was employed on a fixed-term contract for one year. The parties agreed on a four-month probationary period with a two-week notice period. The defendant terminated the plaintiff’s employment during the probationary period.
The plaintiff brought an action for unfair dismissal. She argued the probationary period clause to be invalid because the probationary period was not proportionate to the fixed term of the contract in accordance with Section 15 (3) of the German Part-Time and Fixed-Term Employment Act (TzBfG). In her opinion, the legal consequence was not (only) that the longer standard notice period applied, but that the agreement on the terminability of the fixed-term employment relationship pursuant to Section 15 (4) TzBfG was invalid in its entirety. The termination also required social justification, as the waiting period under Section 1 (1) KSchG could only extend to the duration of a permissible, proportionate probationary period.
The Berlin-Brandenburg Regional Labor Court, judgment of July 2, 2024, 19 Sa 1150/23, considered the probationary period to be disproportionately long. It assumed a standard value of 25% of the duration of the fixed-term contract, i.e., three months. However, it considered the termination to be effective overall – but subject to the longer standard notice period.
In her appeal, the plaintiff continued to seek a declaration that the termination was invalid. The defendant filed a cross-appeal and objected to the Regional Labor Court’s view that the probationary period was too long and that the standard value of 25% of the fixed-term contract period.
The Second Senate dismissed the action in its entirety.
There is no standard value of 25% of the fixed term for a proportionate probationary period. In each individual case, a weighing up must be carried out, taking into account the expected duration of the fixed term and the nature of the work. The defendant had presented convincing arguments for the length of the probationary period.
Even if a disproportionately long and therefore inadmissible probationary period is assumed, there is no reduction in the statutory waiting period under Section 1 (1) of the German Employment Protection Act (KSchG). The possibility of termination continues to exist if there are sufficient grounds for this in the employment contract.
Conclusion
The permissible duration of the probationary period for a fixed-term contract depends on the individual case. Even if the probationary period is too long, general protection against dismissal only applies after six months of employment.
Summary of the key facts
- There is no standard value for a reasonable probationary period of 25% of the fixed term.
- Probationary period and waiting period § 1 (2) KSchG apply independently of each other.
- An invalid probationary period agreement does not affect the agreed termination option.
