Has not passed the probationary period
How should you communicate the termination of the contract to an employee who has not passed the probationary period? Is it compulsory to give a reason or is it not necessary to give explanations? See how to proceed.
How do you report that you have not passed the probationary period?
Is it compulsory to notify in writing that you have not passed the probationary period?
No. The agreement to include a probationary period in a contract must be in writing.
However, unlike in the case of dismissal, notice of termination of the employment contract for failure to complete the probationary period can be given verbally (written notice is not required).
Reasons for not having passed the probationary period
The termination of the employment contract during the probationary period can be done without cause, so that the company is not required to justify the reasons for not having passed the probationary period.
The termination of the employment contract of one of your employees during the probationary period would be valid even if you do not justify the reasons why you consider that your employee has not passed the probationary period.
Record the causes
Although there is no obligation to give written notice of non-completion of the probationary period or to justify the reasons for non-completion, it is advisable to do both.
Notifying the termination of the contract in writing allows you to record when the termination of the employment contract took place and the reason for the termination, which will be very useful if your employee files a lawsuit.
Justification for not passing the probationary period
A detailed description of the reasons for not passing the probationary period will benefit you for the following reasons:
- It will reduce the risks of your employee claiming nullity of the dismissal for discrimination. There are more and more grounds for nullity of terminations (maternity, LGTBI groups, illness…), so it is advisable to keep evidence of the lack of ability of the affected person. For example,if it was a saleswoman, keep evidence that her sales were lower than the average of other workers; if it was a technical position, collect evidence of the mistakes made; or, if customers have expressed their dissatisfaction with the treatment received, record the satisfaction survey in which the complaints are reflected.
- Terminations due to failure to pass the probationary period can be counted to determine the existence of a collective dismissal (remember that a dismissal is collective if, in a period of 90 days, it affects 10 workers in a company of less than 100; 10% in companies of between 100 and 300 workers and 30 workers in companies of 300). However, if you individualise the specific reasons for not passing the probationary period, you will be justifying that the termination is due to reasons that have nothing to do with collective dismissal.
The test is not compulsory for failure to pass the probationary period.
Moreover, it is not necessary to prove the seriousness and culpability of the breaches of employment that you allege as a cause for not passing the probationary period of your employee, as would be the case in a disciplinary dismissal. Therefore, it is sufficient for you to prove breaches of labour law, even if they are minor.
