Probationary Period in Employment – Rules, Termination, and Practical Advice

The trial period arrangement is an important tool in employment that gives both the employer and the employee the opportunity to assess whether the employment relationship works as desired during a limited start-up period. The Working Environment Act § 15-6 allows the parties to agree on a trial period of up to six months.

For employers, the main purpose of the trial period is to be able to assess:

• The employee's adaptation to the work

• The employee's professional competence

• The employee's reliability

For employees, the trial period provides an opportunity to assess job satisfaction and suitability for the position, with the possibility to terminate the employment relationship with a short notice period.

Formal requirements for the trial period agreement

For a trial period to be valid, the following formal requirements must be met:

1. The requirement of writing

The trial period agreement must be in writing. This is a validity requirement, not just a formal requirement. Lack of written form means that the employee is not considered to be on a trial period.

2. Timing of the agreement

The trial period agreement must be concluded before or at the time of commencement. A trial period agreement made after the employee has started the position will not be valid.

3. Duration of the trial period

The trial period can be a maximum of six months, and it runs from the commencement date, not from the conclusion of the agreement.

Termination during the trial period

Grounds for termination

In the trial period, a modified termination protection applies. The employer can terminate the employee if the termination is justified by:

• Lack of adaptation to the work

• Professional deficiencies

• Lack of reliability

Termination on other grounds than these must be assessed according to the ordinary rules in the Working Environment Act § 15-7 regarding reasonable grounds.

Notice period

The notice period during the trial period is 14 days, unless otherwise agreed in writing, cf. the Working Environment Act § 15-3 (7). This short notice period applies to both parties.

Requirements for the process

Although the threshold for termination is lower during the trial period, the process requires that:

• The employer must provide sufficient training and guidance

• The employee must receive feedback on any deficiencies

• The employee must be given an opportunity to improve

Extension of the trial period due to absence

The Working Environment Act § 15-6 (4) allows for the extension of the trial period in case of the employee's absence. For this to be valid, the following conditions must be met:

1. The employee must have been informed in writing at the time of employment that the trial period can be extended due to absence

2. The employer must inform the employee in writing about the extension before the original trial period expires

3. The absence must not be caused by the employer (for example, mandatory course participation)

The extension can at most correspond to the length of the absence. This provides the employer with an opportunity to have a real trial period even if the employee has been absent for parts of the original trial period.

Trial period when changing positions within the same company

Supreme Court practice has set clear limits on the ability to agree on a trial period when an employee changes positions within the same company:

Main rule: No new trial period

Normally, no new trial period can be agreed upon when:

• A temporary employee receives a permanent position in the same or similar position (Rt. 1996 s. 1026)

• The employee changes to a different position within the company, unless the employee is ensured the right to return to the original position (Rt. 1997 s. 560)

Exception: Reassignment after necessary restructuring

In the case of reassignment due to necessary restructuring (cf. aml. § 15-7 (2)), the Supreme Court in Rt. 1999 s. 1694 (Selective Marketing) has allowed for a trial period under special circumstances:

• The main rule is still that the employer is obliged to offer the new position without a trial period

• A trial period may still be agreed upon when "the new position is of such a nature that without a trial period it would not be possible to ascertain whether the company has any suitable work to offer"

In this case, an employee was dismissed from the packaging department and offered a position as a telephone sales representative with a trial period. The Supreme Court accepted the trial period because the telephone sales position:

• Was significantly different from the previous position

• Had specific performance requirements

• Required special personal qualities

Practical recommendations for employers

Upon hiring and agreeing on a trial period

• Ensure that the trial period clause is clearly formulated in the written employment contract

• Inform in writing about the possibility of extension due to absence already in the employment contract

• Specify the length of the trial period and the notice period

• Clarify the evaluation criteria that will be used during the trial period

During the trial period

• Provide the employee with necessary training, guidance, and feedback

• Document ongoing evaluations of the employee's performance

• In the event of deficiencies or weaknesses, provide specific feedback and opportunity for improvement

• In case of absence, assess whether there are grounds for extension and, if so, give written notice before the original trial period expires

Upon termination during the trial period

• Ensure that the termination is based on relevant grounds (adaptation, professional competence, or reliability)

• Observe the 14-day period unless otherwise agreed

• Conduct a discussion meeting before termination, cf. the Working Environment Act § 15-1

• Provide a written and objectively justified termination

Upon internal position change

• Carefully assess whether it is legally permissible to agree on a new trial period

• In the event of reassignment after restructuring, assess whether the change in position is so significant that a trial period is necessary

• Consider whether the employee can be ensured the right to return to the original position or a similar one

Conclusion

The trial period arrangement provides both the employer and the employee with flexibility at the start of an employment relationship. For employers, it is important to be aware of the formal requirements for the trial period agreement and the limitations on the ability to agree on a trial period when changing positions within the same company.

When handled correctly, the trial period arrangement can be a useful tool to ensure that the employment relationship is successful for both parties. At the same time, it provides an opportunity to terminate the employment relationship in a less intrusive manner if it turns out that expectations are not met.