The term "probationary period" refers to two completely different timeframes, and confusing them regularly costs employees their protection against dismissal. The contractual probationary period only concerns the notice period: as long as it is in effect, for a maximum of six months, the employee can be dismissed with two weeks' notice. Protection against dismissal, on the other hand, is tied to a separate period, the six-month waiting period stipulated by the German Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz). Only after this waiting period has expired does the employer need a valid reason for dismissal.
Both deadlines often run concurrently, but not always. If your contract includes a three-month probationary period, you are not protected after its end and must wait another three months. Conversely, a notice of termination given shortly before the end of the sixth month, but received just one day late, can trigger full protection against dismissal. Therefore, the date of receipt is the crucial factor in these cases.
We are Smart Employment Law, a law firm with two offices in Hamburg specializing exclusively in employment law. We advise and represent employees, employers, and works councils. Because we also support companies with hiring and termination processes, we know which steps are often overlooked in the first few months and where dismissals can therefore remain vulnerable to challenge.
The most important information at a glance
- Two deadlines: The contractual probationary period regulates the notice period, the statutory waiting period of six months regulates the protection against dismissal.
- No reason needed: During the probationary period, the employer does not need a reason for dismissal, but the dismissal must be formally and substantively permissible.
- Access decides: If the notice of termination is received only after the six months have expired, the Protection Against Unfair Dismissal Act applies in full.
- Genuine intellectual property rights: Maternity protection, parental leave, care leave, works council mandate, prohibition of discrimination and prohibition of reprisals apply from day one.
- Works council: Even during the probationary period, an existing works council must be consulted before dismissal.
- Three weeks: The time limit for filing a lawsuit also applies because it covers all grounds for invalidity, not just general protection against dismissal.
Probationary period and waiting period: the crucial difference
The probationary period is an agreement stipulated in the employment contract. Its sole legal effect is that both parties can terminate the contract with two weeks' notice, effective on any day, not just at the end of the month. This shortened notice period cannot be agreed upon for a longer than six months.
The waiting period, on the other hand, is stipulated in the German Protection Against Unfair Dismissal Act. It lasts six months and applies regardless of any probationary period clauses in the employment contract. Only after this period does general protection against unfair dismissal apply, and the employer must then provide reasons related to the company's operations, the employee's person, or the employee's conduct. Additionally, the company must generally employ more than ten employees; more information on this can be found in the guide to... Protection against dismissal in employment relationships.
This distinction leads to two practical scenarios. If no probationary period is agreed upon, the waiting period still applies; the employer can therefore terminate the employment without giving a reason, but must adhere to the standard notice period of four weeks to the fifteenth or the end of the month. If a shorter probationary period is agreed upon, for example, three months, this standard notice period remains in effect after its expiry, while the employee continues to lack protection against unfair dismissal.
Which notice period actually applies
The two-week period is the legal framework, but not always the decisive one. Check three sources. Your employment contract may stipulate a longer notice period, which is permissible and more advantageous for you. A collective bargaining agreement may contain shorter notice periods, and in some sectors even allow for termination with one day's notice. Apprenticeships have their own system: During the probationary period of one to four months, termination is possible at any time without notice; after that, termination is only permitted for a compelling reason.
It's also important to note that a termination notice doesn't have to take effect within the probationary period. The employer can terminate the employment shortly before its end, meaning the employment relationship doesn't end until two weeks later. Conversely, the termination notice itself must be received within the probationary period for the short notice period to apply. The employer is not required to state a reason in the notice; see our article for more information. Does the reason for termination have to be stated in the termination letter?.
When one day decides about protection against dismissal
The six-month waiting period is calculated from the agreed start date of the employment relationship, not from the first actual day of work. It ends at the end of the day corresponding to the start date of the sixth month. If the employment relationship begins on February 1st, the waiting period is fulfilled at the end of July 31st, and protection against dismissal applies from August 1st.
What matters is the date the notice of termination is received, not the date of the letter or the termination date. If the notice is received on the last day of the probationary period, it remains valid without requiring a reason, even if the employment relationship doesn't end until weeks later. If it is received one day later, the employer must fully justify the termination. Therefore, note the date and time you retrieve the letter from the mailbox and keep the envelope.
Another point concerns prior employment. If you have previously worked for the same employer, for example as a temporary worker, on a fixed-term contract, or as a student trainee, these periods can be credited towards the waiting period if there is a close substantive connection. This is a point that employers often overlook.
This also applies during the probationary period.
The notion of a legal vacuum is incorrect. While the employer does not have to state a reason for dismissal, a number of requirements remain.
Form and power of attorney
The termination notice must be in writing and include a handwritten signature. Termination by email, messenger, fax, or verbally is invalid, and this mistake is common in small businesses. If someone signs the notice whose authority is unclear, you can immediately contest their authorization.
Hearing of the Works Council
If a works council exists, it must be consulted before any dismissal, even during the probationary period. The employer must inform the works council of the person being dismissed, the type of dismissal, the notice period, and the reasons for the dismissal. For dismissals within the first six months, subjective considerations are sufficient, but they must be stated. A dismissal without proper consultation is invalid.
Special protection against dismissal
Genuine prohibitions against dismissal apply regardless of the waiting period. During pregnancy and parental leave, dismissal is only possible with official approval; see the guide on [topic missing]. Protection against dismissal during pregnancy and parental leave. The same applies during periods of caregiving, as well as to members of the works council and election candidates. There is a special provision regarding the special protection against dismissal for severely disabled individuals: it only applies if the employment relationship has lasted longer than six months, meaning that approval from the Inclusion Office is not required during the probationary period. What applies after that is detailed in the [relevant section/document/etc.]. Protection against dismissal for severely disabled employees.
Discrimination and retaliation
The General Equal Treatment Act applies from day one. If an employee is dismissed because of gender, origin, religion, disability, age, or sexual identity, the dismissal is invalid, and compensation may be considered; see our article on this topic. AGG compensation for discrimination. The prohibition of retaliatory measures also applies: A dismissal that occurs in response to the assertion of rights, such as a wage claim, the refusal of unauthorized overtime, or a complaint, is inadmissible. Dismissals that are contrary to good faith or public policy are also contestable, for example, if the employer has recently promised you an extension of your contract and you have therefore rejected another offer.
Illness during the probationary period
A doctor's note doesn't protect you from being fired, but it does change your payment arrangements. The right to continued payment of wages only arises after four weeks of employment. If you fall ill in the second week, you won't initially receive payment from your employer, but rather sick pay from your health insurance provider.
If the dismissal is due to incapacity for work, the entitlement to continued payment of wages remains in effect beyond the end of the employment relationship, for a maximum of six weeks. A close temporal connection between the sick leave notification and the dismissal initially suggests such a dismissal is justified. Therefore, keep a record of when you reported sick and when you received the dismissal notice.
Vacation, certificate and employment documents
Even short-term employment entitles you to vacation leave. Full vacation entitlement requires six months of employment; before that, you are entitled to one-twelfth of your vacation for each full month of employment. Any unused vacation days must be compensated upon termination of employment.
You can also request a reference letter, and if you wish, a qualified one that includes an evaluation of your performance and conduct. For very short-term employment, a simple reference letter is sometimes the better choice, as an evaluation after only a few weeks is hardly meaningful and can raise questions. Make sure that the reason for termination is not misrepresented, for example, as resignation at your own request.
Unemployment benefits and waiting period
If your employer terminates your employment during the probationary period, there is no waiting period for unemployment benefits because you did not cause your unemployment. This is different if you resign or often also if you reach a mutual termination agreement.
However, a reduction applies to termination agreements during the probationary period: If the employment relationship would have ended within six weeks anyway due to the short notice period, the waiting period is only three weeks. For a twelve-week period, it is six weeks. Anyone receiving such an offer should have it reviewed beforehand; see our page. Have your termination agreement reviewed.
A second point concerns the eligibility itself. Unemployment benefits require that you have been employed and subject to social security contributions for at least twelve months within the last thirty months. Those who have only worked for a few weeks directly after their training or after a longer break may not meet this requirement. Clarify this with the employment agency early on so that you can adjust your plans accordingly.
If you wish to resign during your probationary period
The short notice period applies in both directions. You too can give two weeks' notice, effective on any day. This is convenient if you want to quickly switch to another job. However, check whether your contract stipulates a longer notice period, as this will also bind you.
There are two points you should clarify beforehand. First, the repayment of training costs: Many contracts contain clauses stipulating that training or relocation expenses must be repaid if you leave within a certain timeframe. Such clauses are often invalid because they are too broadly worded, but they can be a deterrent. Second, the waiting period if you terminate your employment without a new contract. Resigning without a valid reason usually results in a waiting period, although its length is shorter in this case.
If the collaboration doesn't work from the start, a mutual termination is often the smoothest solution. Pay close attention to the wording regarding the reason for termination, as this will have implications for your reference letter and with the employment agency.
Negotiating instead of suing: what is realistic
During the waiting period, a lawsuit is only successful if there is a specific ground for invalidity, such as a formal error, a lack of consultation with the works council, special protection against dismissal, discrimination, or retaliation. If no such ground exists, the dismissal is valid, and a Unfair dismissal claim before the labor court This doesn't lead anywhere.
However, several aspects remain negotiable. In practice, this includes the termination date to ensure a seamless transition to a new position, paid leave of absence, the wording of the reference letter, and whether the dismissal will be replaced by a termination agreement. While a termination agreement may require less explanation in job applications, it does affect the waiting period for unemployment benefits. Severance pay is rare during the probationary period but can occur if the employer perceives a legal risk.
Special case: fixed-term contract and training
In the case of a fixed-term employment contract, it must first be determined whether ordinary termination has been agreed upon. Without such a provision, the contract can only be terminated before the end of the fixed term for good cause, and a termination during the probationary period would be invalid. Additionally, the duration of any agreed probationary period must be reasonable in the case of a short fixed term; further details can be found in the guide on... fixed-term employment contract.
Apprenticeships are governed by their own set of rules. During the probationary period of a maximum of four months, termination is possible at any time without notice. After that, the company can only terminate the apprenticeship for good cause, while you yourself can give four weeks' notice if you wish to discontinue the apprenticeship or continue it in a different profession. In many chamber districts, a conciliation procedure must first be carried out before legal action can be taken.
Here's how to proceed
- Document access: Note the date, keep the envelope, and enter a deadline of three weeks.
- Comparing two data points: The start of the employment relationship and receipt of the notice of termination are used to calculate the waiting period.
- Review the contract: Duration of the probationary period, notice period, reference to a collective agreement, and, in the case of a fixed-term contract, the termination clause.
- Clarify intellectual property rights: Pregnancy, parental leave, care leave, works council mandate, prior employment with the same employer.
- Don't sign anything hastily: Termination agreement and settlement receipt only after review, due to the waiting period.
- Employment Agency: Register as a job seeker immediately and clarify your eligibility.
Frequently asked questions about termination during the probationary period
Check two data points, then decide
During the probationary period, much depends on two dates: the start of the employment relationship and the receipt of the notice of termination. We will promptly check whether the waiting period was still running, whether formalities were observed, and whether any protective rights apply. If you have received a notice of termination, Describe your case to us. The initial consultation with a brief assessment is free of charge, and we will get back to you promptly.
author
Raphael Lugowski
Raphael Lugowski is a specialist lawyer for employment law and has been advising employees, works councils, and staff councils in all areas of individual and collective employment law since 2016. His areas of expertise include: protection against dismissal, termination agreements, works constitution law, and employment law at the intersection of digitalization and AI.
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