Can my employer extend the probationary period?

Thursday, 18.11.2021

A probationary period in the employment contract is common – usually it is six months and the employment relationship can be terminated during the probationary period with a notice period of 2 weeks. The probationary period in the employment contract may not be longer than this, according to § 622 Paragraph 3 BGB.

In companies with more than ten employees, the Dismissal Protection Act (Kündigungsschutzgesetz) applies from a period of employment of six months, so that employees are specially protected against dismissal from this point on. The notice period is then at least four weeks to the 15th or to the end of a calendar month during the first two years.



Notice with extended notice period

Employers can extend the probationary period by giving notice during the probationary period – but with a longer notice period than the two weeks provided for.

In an action for protection against dismissal, the labour courts then examine whether the extension of the notice period is permissible or whether the dismissal is invalid because it is intended to circumvent the mandatory provisions of the Dismissal Protection Act.

If the notice period is extended to a maximum of three to four months and the employee is to continue to be employed and tested during this period, the Federal Labour Court considers the extension of the notice period to be reasonable. This applies at least if the notice of termination is accompanied by a promise of reinstatement in the event that the employee proves their worth during the extended probationary period. This was already decided by the Federal Labour Court in 2002, BAG, decision of 7 March 2002 – 2 AZR 93/01.


Extension by another three months permissible

It is unclear whether a further extension of the notice period would be considered permissible. The LAG Mecklenburg-Vorpommern still considered a notice period extended by four months to be “manageable”, LAG Mecklenburg-Vorpommern, Urt. v. 24.6.2014 – 5 Sa 222/13.

In the literature, the view is taken that it would be sufficient not to exceed the longest statutory notice period – i.e. seven months to the end of the month, according to § 622 Paragraph 2 No. 7 BGB. However, there is still no case law that confirms this.


Extension of probationary period by termination agreement

The probationary period can also be extended by a termination agreement with a later termination date. The termination agreement, just like the termination letter, should explicitly state that the employee will be given another opportunity to prove themselves and that they will be reinstated if the performance criteria are met. The termination date should be no more than three to four months in the future. Otherwise, the extension of the he probationary period may be invalid.

LAG Mecklenburg-Vorpommern, Urteil vom 24.06.2014 – 5 Sa 222/13