One of the clauses most frequently encountered in employment contracts when starting a new job is the “probation period.” This clause gives the employer the opportunity to observe the employee’s adaptation to the job and the workplace, and gives the employee the opportunity to assess whether the working conditions suit them. For both employees and employers, knowing the legal limits of this process prevents loss of rights in the future.
Legal Basis and Time Limit
The probation period is regulated in Article 15 of Labour Law No. 4857. Under that article, a probation period included in an employment contract may be at most 2 months. This period may be extended to at most 4 months only where a collective bargaining agreement applies between the parties. Exceeding the 2-month limit is not legally possible in individual employment contracts.
Two points overlooked in practice are particularly important:
- A probation period does not arise automatically. If it has not been expressly agreed by the parties in the contract, it cannot be asserted that the employment relationship includes a probation period. The assumption that “everyone has one anyway” has no legal counterpart.
- Any part exceeding the statutory limit is invalid. Writing a 6-month probation period into the contract does not mean that period is valid; the portion exceeding the statutory ceiling is deemed void and the period is reduced to the statutory limit.
- The probation period cannot be extended. Agreeing a new probation period or extending the existing one after it has expired would amount to circumventing the maximum period prescribed by law, and is therefore not accepted in practice.
How Does Termination During the Probation Period Operate?
The most distinctive legal feature of the probation period is that, within it, both the employee and the employer may terminate the contract without observing a notice period and without compensation. The practical consequences are as follows:
- The employee may leave the job without being bound by a notice period if they find the working conditions unsuitable.
- The employer may bring the contract to an immediate end if it does not consider the employee’s adaptation or performance sufficient.
- In neither case do the parties pay each other notice compensation.
- There is no separate obligation to show a valid reason for a termination made within the probation period.
This freedom is not unlimited, however. Where the termination is based on grounds such as language, race, sex, disability, political opinion, religion or sect, the principle of equal treatment in Article 5 of the Labour Law and the protective provisions concerning pregnancy and trade-union grounds come into play. In such cases, the probation period does not render a discriminatory termination lawful.
Terminations made after the period has expired are no longer subject to the probation regime but to the general provisions on termination; the notice period applies and, where the conditions are met, so do the job security rules.
The Employee’s Protected Rights During the Probation Period
Article 15 of the Labour Law expressly reserves the employee’s rights in respect of the days worked during the probation period. Being on probation does not extinguish any of the following rights:
- Wages: Wages are earned for every day worked. The practice that “the probation period is unpaid” is unlawful.
- Social security: The employee’s social security registration notice must be filed as from the first day of work. The probation period cannot be a justification for unregistered employment.
- Overtime and holiday pay: Payment is due for overtime work and for work performed on weekly rest days and on national and public holidays.
- Occupational health and safety: The employer’s obligation to provide the necessary training, equipment and measures arises from the first day.
Does the Probation Period Count Towards Seniority?
Yes. The probation period runs from the beginning of the employment relationship and is included in the employee’s seniority. Accordingly, in calculating the period to be taken as the basis for severance pay and paid annual leave, the date on which work actually began is taken into account; the probation period cannot be excluded from that calculation.
By contrast, in order to benefit from the job security provisions (invalidity of the termination and reinstatement), the minimum six months’ seniority required by law and the other conditions are separately sought. For that reason, a reinstatement action is not available in respect of a termination made during the probation period.
Common Mistakes in Practice
- Not writing the probation period into the contract at all, yet relying on it upon termination.
- Agreeing a period exceeding 2 months in an individual contract.
- Delaying or omitting the social security notification on the pretext of the probation period.
- Characterising a termination made after the period has expired as a “probation period termination.”
- Failing to communicate the intention to terminate clearly to the other party and failing to document it.
The probation period is a legitimate assessment tool for both parties; however, where the limits drawn by the law are exceeded, the termination may become unlawful and give rise to liability for compensation. In your particular case, the wording of the contract and the date of termination must be assessed separately.