The probation period in the employment contract
The probation period is the initial phase of the employment relationship in which employer and employee assess each other. The Code of Obligations (CO) reserves particular rules for it, especially regarding notice of termination. Knowing them avoids mistakes that, in the event of a dispute, prove costly.
How long it lasts by default
Unless otherwise agreed, the first month of work counts as the probation period. There is no need to write it down: it is the supplementary rule provided for by law.
The parties can, however, act in two directions, both in writing:
- extend the probation up to a maximum of three months;
- waive the probation period altogether.
A probation period agreed beyond three months is not valid in the excess part: it remains effective only within the legal limit. It is one of the most frequent mistakes in contracts drafted without care.
Notice of termination during probation
The substantial difference compared with a consolidated relationship concerns the notice periods. During the probation period each party may terminate the contract with seven days’ notice.
This term too can be modified by written agreement, but in practice the seven-day term is the standard. Notice must be given so that it reaches the other party before the end of the probation period: what counts is the moment the declaration arrives at its destination, not the one in which it is sent.
Extension for absences
The probation period serves to observe the person at work. For this reason the law provides that, if during probation the relationship is interrupted because of:
- illness;
- accident;
- fulfilment of a legal obligation not voluntarily assumed (for example military service);
the probation period is extended by an amount corresponding to the days of absence. In this way the employer recovers the observation time lost.
No protection from “blocking periods”
A point that is often misunderstood: during the probation period the protection against termination at an inopportune time (the so-called blocking periods for illness, accident, pregnancy, service) does not apply. That protection only kicks in after the end of probation.
Concretely: an employee who falls ill during probation can be given notice, and the seven-day term runs normally (subject to the extension of the probation period for the days of absence). This makes the initial phase much “lighter” for the employer to manage, but it also requires timely decisions.
Probation and the fixed-term contract
In the fixed-term contract there is no automatic probation period: if one is wanted, it must be expressly agreed. The logic is that a fixed-term contract ends in any case on expiry, without the need for notice.
If, on the other hand, several contracts follow one another or you move from an apprenticeship to a job, you must assess case by case whether a new probation period is justified: repeating it for substantially identical duties, already tried and tested, may prove abusive.
What to put in the contract
To avoid disputes it is advisable to regulate clearly:
- the exact duration of the probation period (within the three months);
- the notice period applicable in this phase;
- any waiver of probation, if this is the will of the parties;
- the reference to the extension in the event of absences.
An ambiguous wording (“probation period according to the law”) works, but stating the numbers reduces misunderstandings.
Recurring mistakes
In our experience the most common are: probation set at six months (void beyond three), notice given too late relative to the deadline, the mistaken belief that during probation a sick employee cannot be dismissed, and failure to extend probation after an absence. Each of these points, before a judge, turns against whoever drafted the contract badly.
How we help you
The People division of SIH ONE sets up contracts with probation clauses that comply with the CO and coordinates notice periods, insurance and onboarding. Let us review your employment contracts.