When the employment relationship starts, the employer and employee can agree on a trial period, during which both parties can end the employment contract with immediate effect. The trial period cannot begin proactively before the employment relationship starts or later into the employment relationship: it must begin the moment the employee starts working.
Usually, a trial period can only be set at the beginning of the employment relationship. However, if the employee’s role or duties change substantially during a non-fixed term employment contract, a new trial period can be set when the employee starts in the new role. If a long time has passed since the previous employment contract between the parties, a trial period can be included in the new employment contract. So, as a rule, a trial period cannot be included in each consecutive fixed-term contract, except when the employee’s duties change substantially under the new employment contract.
The parties usually agree on a trial period when they enter the employment contract. The maximum length of a trial period is six months. The employer has the right to extend the trial period if the employee is absent from work during the trial period due to disability or family leave. The employer must notify the employee that the trial period has been extended before the trial period ends. In fixed-term employment contracts, the maximum length of the trial period is six months, and it may not, even if extended, exceed half of the duration of the employment contract.
A trial period requires an explicit agreement. The responsibility to prove that a trial period has been set is on the party who wants to invoke the trial period clause. Both the employer and the employee may cancel the employment contract during the trial period regardless of the criteria laid down in the Employment Contracts Act. The purpose of the trial period is to give both parties time to consider whether the employment contract meets their expectations.
Some collective agreements include trial period provisions. The employee may not be aware of the content of the collective agreement. When concluding the employment contract, the employer must notify the employee if the trial period provision of the collective agreement is applied. If the employer fails to comply with this obligation, a trial period based on a collective agreement may not be applied to the employment contract.
Cancelling an employment contract during a trial period
Both the employer and the employee can cancel the employment contract during the trial period. When the employment contract is cancelled during the trial period, the employment relationship ends with immediate effect. The trial period is in itself enough to justify the cancellation of the employment contract. When an employment relationship is terminated on the basis of a trial period, the non-discrimination provisions of the Employment Contracts Act and the Equality Act must be adhered to. Neither party may cancel the employment relationship for an inappropriate reason during the trial period. If the employer wants to cancel the employment contract, the reason should be related to, for example, the employee’s work performance or ability to adjust to the work community.
According to established case law, cancelling an employment contract during a trial period is justified in itself, but before doing that, the employer must give the employee the opportunity to be heard regarding the reasons for terminating the employment contract. The employer must also provide more detailed reasons for cancelling the employment contract during the trial period, at least upon request.