Dismissal during probationary period
Patrick Gordinne Perez2024-12-28T07:21:19+00:00In general, dismissals for not passing the probationary period can be without cause, but there are some cases in which you should be especially careful.
See with Asesoría Orihuela Costa what you should take into account according to recent real cases.
What is the Probationary Period of a working contract in Spain?
Definition of probationary period
The probationary period is an initial stage of the employment relationship in which both the employer and the employee assess the desirability of maintaining and continuing the employment contract.
Although, in general, during this period both parties can terminate the contract without having to justify their decision (stating only “for failure to pass the probationary period“), this is not absolute and certain limits must be respected.
Limits to the probationary period
The probationary period is not mandatory
Trial period in a contract
However, if you want to agree to it, you must do so expressly, formalising it in writing in a contract and respecting the maximum periods established in the law and in collective agreements.
If there is no written contract providing for the probationary period, the probationary period will not be valid, so that any dismissal for failure to pass the probationary period could be classified as unfair.
What does the workers’ statute say about the probationary period?
Duration of the probationary period
The maximum duration of the probationary period in an employment contract is fixed by your collective agreement. If the agreement does not regulate this matter:
- The duration may not exceed six months for qualified technicians and two months for other workers.
- If your company has fewer than 25 employees, the probationary period may not exceed three months for those who are not qualified technicians.
- If you sign a temporary contract for a period not exceeding six months, the probationary period may not exceed one month, unless your collective agreement extends this limit.
Please note that in the event of a dispute you must expressly prove the existence and duration of the probationary period.
Employee rights
Although during the probationary period the company can terminate the employee’ s contract at any time without having to give a reason, this right of termination must respect certain limits.
Grounds for failure to pass the probationary period
Thus, contract terminations may not violate fundamental rights and must respect contractual good faith.
In short, decisions to terminate during the probationary period may not be discriminatory or violate the employee’s fundamental rights.
Possible nullity of dismissal during the probationary period
In this regard, the courts have outlined the specific criteria for establishing whether a dismissal for failure to pass the probationary period can be considered null and void for violation of fundamental rights and have concluded that, in any case, the company must be able to demonstrate that the decision is completely unrelated to the situation that could imply discrimination and that it was not motivated by it.
See below some specific cases that the courts have analysed.
Dismissal on probationary period null and void
What do the courts say?
Case 1.
Probationary period without a contract
In a recent case, an employee was verbally dismissed before the probationary period had ended.
After the verbal dismissal, the company sent a burofax to the employee reiterating the dismissal for not passing the probationary period and claiming that it was for not passing the probationary period.
However, in the absence of a written contract formalising the probationary period, the court declared it invalid and ordered the company to reinstate the worker or pay compensation.
In addition, an additional compensation was added as the statutory compensation was considered insufficient.
The amount of this additional compensation was set at six months’ salary.
Case 2.
In another case, a female worker challenged a disciplinary dismissal that had occurred during the probationary period.
The company did not appear at the trial, and the court found the facts alleged by the employee to be true and declared the dismissal for not exceeding the probationary period to be unfair.
This case highlights that, although a contract can be terminated during the probationary period, it is essential that the employer adequately justifies the decision (indicating that the employee is being dismissed because he or she has not passed the probationary period).
Otherwise, the dismissal during the probationary period could be classified as unfair.
In this case the statutory compensation was also considered insufficient and was supplemented by an additional compensation of six months’ salary.
Case 3
Probationary medical leave
Another case deals with null and void dismissal during the probationary period due to discrimination after an accident at work.
Although the company argued that the probationary dismissal was for failure to pass the probationary period, the probationary period had not been agreed in writing.
In addition, the worker was on medical leave due to an accident at work.
For all these reasons, and in the absence of any justification clearly linking the dismissal decision to the sick leave, the judge concluded that the dismissal violated fundamental rights and was therefore null and void.
And the company was ordered to compensate the worker for non-pecuniary damages.
They have to put it in writing and justify very much if they can dismiss you while you are on probationary leave.
If you agree to a probationary period, formalise the agreement in writing, stating the duration of the probationary period. And if you are going to dismiss an employee during this period, although you can generally do so without cause, give a minimum justification for the reasons.
Probationary compensation
Probationary dismissal compensation
As you can see, the courts are starting to award additional compensation to the probationary compensation for unfair dismissal, especially in cases where the dismissal occurs very early or during the probationary period, since in such cases the legal compensation may be insufficient due to the low seniority generated by the worker.
Complement
Remember which are the ways of supplementing the compensation when these are considered insufficient by the courts:
Probationary severance pay in addition to that assessed as insufficient.
- The possibility of recognising additional compensation arises in those cases in which the compensation for unfair dismissal is manifestly insufficient.
Compensation during the probationary period for violation of fundamental rights.
- In cases of null dismissal for violation of fundamental rights, it is not acceptable to lower the compensation for dismissal during the probationary period below the minimums established in the Law on Infringements and Sanctions in the Social Order (LISOS), which the courts take as a reference.
Conclusions
Trends in probationary dismissal
An analysis of recent cases of dismissal during the probationary period reveals the following aspects:
- The need to formalise the probationary period in writing. Failure to do so may lead to the dismissal being classified as unfair.
- The need for the termination decision during the probationary period to have a lawful and non-discriminatory cause and to respect the fundamental rights of the workers. Otherwise, a sentence for non-pecuniary damages will be applied and the dismissal will be null and void for violation of fundamental rights.
- There is a growing line of jurisprudence according to which compensation for unfair dismissal during the probationary period must be adequate and not limited to the legal minimums, and additional compensation may be ordered to be paid in addition to the amounts assessed.
Do not take the risk of dismissal during the probationary period.
Therefore, if you set a probationary period:
- Clearly agree in writing on the probationary period and its specific duration.
- Always give written notice of termination of the employment contract for failure to complete the probationary period.
- Justify the causes in a minimally detailed manner to prove that they do not violate any fundamental right of the employee (such as IT leave, rights linked to paternity or maternity leave, that the employee has asserted a right, etc.).