Under Section 622(3) of the German Civil Code (BGB), an employer may issue a notice of termination (Kündigung) during the probationary period (Probezeit) with a reduced notice period of only two weeks, without being required to state a specific reason. This is because the general statutory protection against unfair dismissal (allgemeiner Kündigungsschutz) under the Dismissal Protection Act (Kündigungsschutzgesetz) only takes effect after a waiting period of six months (Section 1(1) KSchG).
Nevertheless, employees are not left without protection during the probationary period. Formal requirements, anti-discrimination provisions and special protection against dismissal (Sonderkündigungsschutz), for instance for pregnant employees, apply from the very outset of employment. Familiarity with the basic rules enables a quicker assessment of whether a dismissal is valid and whether legal action is worthwhile.
How Long Does the Probationary Period Last and What Notice Period Applies?
A probationary period (Probezeit) is not required by law, but is agreed upon in most employment contracts and may not exceed six months. During this agreed probationary period, both the employer and the employee may terminate the employment relationship (Arbeitsverhältnis) with two weeks' notice pursuant to Section 622(3) BGB.
Unlike the standard notice period of four weeks to the 15th or the end of a calendar month (Section 622(1) BGB), a notice of termination (Kündigung) during the probationary period does not have to fall on a specific date. It may be received on any calendar day and expires exactly two weeks later.
By way of example: if the notice of termination (Kündigung) is received on the 3rd of a month, the employment relationship ends on the 17th of the same month, unless the employment contract or a collective agreement (Tarifvertrag) provides otherwise. Some collective agreements (Tarifverträge) or employment contracts stipulate longer notice periods, which then take precedence.
Does the Employer Need a Reason for Dismissal?
During the probationary period, the employer is generally not required to state a reason for dismissal. The Dismissal Protection Act (Kündigungsschutzgesetz) and its requirements for a dismissal on personal, behavioural or operational grounds (personen-, verhaltens- oder betriebsbedingte Kündigung) only apply once the employment relationship has subsisted without interruption for more than six months (Section 1(1) KSchG).
This does not mean, however, that every dismissal is permissible. Dismissals that violate the prohibition of retaliation (Maßregelungsverbot) under Section 612a BGB, for example, because an employee has lawfully exercised their rights, remain prohibited. Equally impermissible are dismissals that violate the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), for instance on grounds of gender, origin or disability (Section 7 AGG).
A dismissal that is contrary to public policy (sittenwidrig) under Section 138 BGB or that violates the principle of good faith (treuwidrig) under Section 242 BGB is also invalid, even if the Dismissal Protection Act (KSchG) does not yet apply. Such cases are rare in practice, but cannot be ruled out.
Does Statutory Dismissal Protection Under the KSchG Already Apply During the Probationary Period?
Full statutory protection against unfair dismissal under the Dismissal Protection Act (KSchG) requires two conditions to be met: a waiting period of six months within the same establishment (Section 1(1) KSchG) and a minimum establishment size of, as a rule, more than ten employees (Section 23 KSchG). If either of these conditions is not fulfilled, the employer may dismiss an employee without having to satisfy the strict requirements of social justification (soziale Rechtfertigung).
It is important to note that the waiting period runs from the actual commencement of the employment relationship, not from the end of the contractually agreed probationary period. If the probationary period agreed upon is shorter than six months, the full protection afforded by the Dismissal Protection Act (KSchG) nevertheless does not commence until the full six-month period has elapsed.
Special Provisions Relating to Pregnancy, Severe Disability and the Works Council
For severely disabled persons (schwerbehinderte Menschen), the special protection against dismissal under Section 168 of Book IX of the Social Code (SGB IX), which requires the prior consent of the Integration Office (Integrationsamt), does not apply until after an employment period of more than six months (Section 173(1) No. 1 SGB IX). This special protection therefore does not, as a rule, exist during the first six months of employment.
Where a works council (Betriebsrat) has been established in the workplace, it must be consulted prior to every dismissal, including during the probationary period (Section 102 of the Works Constitution Act (BetrVG)). If this consultation is omitted, the dismissal is invalid on that ground alone, irrespective of whether the Dismissal Protection Act (KSchG) applies.
What Formal Requirements Must a Dismissal Satisfy?
For the purposes of calculating the notice period, the decisive factor is the date on which the notice of termination (Kündigung) is received, not the date of the letter. Where the notice is delivered in person, receipt should, where possible, be confirmed in writing. If sent by post, it is advisable from the employer's perspective to use recorded delivery (Einwurf-Einschreiben) in order to be able to prove receipt in the event of a dispute.
What Options Do Employees Have Following Dismissal During the Probationary Period?
It is advisable to seek legal advice on the dismissal without delay. In particular, the following points should be clarified:
- Has the written form requirement been complied with and can receipt be evidenced? - Does special protection against dismissal (Sonderkündigungsschutz) already apply, for example on grounds of pregnancy? - Was an existing works council (Betriebsrat) duly consulted? - Are there any indications of discrimination under the General Equal Treatment Act (AGG)?