Specification of the length of the probationary period as a requirement for its effectiveness
Published on 28th Feb 2022
The probationary period agreed in the employment contracts must be expressly stated in writing, and an agreement that refers to the maximum period established in collective bargaining agreements or in the Workers' Statute is not efective, as stated by the Social Chamber of the Supreme Court in its recent judgment from 9 December 2021.
Frequently the probationary period agreed in the employment contracts refers to the collective bargaining agreement (hereinafter "CBA") or the Royal Legislative Decree 2/2015, of 23 October, which approves the revised text of the Workers' Statute Law (hereinafter "WS"), but without specifying the exact duration of such probationary period. In these situations, where the exact duration of the probationary period is not set in the employment contract, compliance with the legal and jurisprudential requirement to agree expressly and in writing on the employee's probationary period can be questioned.
The probationary period is regulated in the article 14 of the WS and it is an agreement between the employer and the employee at the beginning of the employment relationship. Under such agreement, the employee will develop a first contact with the job, and the employer will be able to appreciate the employee´s suitability for the job. During the probationary period, both parties may unilaterally terminate the employment contract without prior notice and without giving any reason.
Article 14.2 of the WS establishes that the employee during the probationary period will have the rights and obligations corresponding to the job position, the same as any other employee of the company, except for those rights derived from the termination of the employment relationship (i.e. the agreement does not entail the obligation to give notice, nor compensation for termination of the contract, unless otherwise agreed).
After the probationary period has concluded, without the parties having terminated the employment relationship, the contract takes full effect. Consequently, the duration of this period is an essential element of the agreement, since once this period has elapsed, the termination regime of the contract will become the ordinary one. Article 14 of the WS provides that the duration of the probationary period shall be set in the CBA in accordance with the legal limits established, and in the absence of conventional regulation, the provisions of the WS shall apply. If the duration of the probationary period has not been set in the CBA, the statutory regulation states that it may not exceed:
- 6 months in the case of qualified technicians.
- 2 months for other employees.
- In companies with less than 25 employees, the probationary period may not exceed 3 months for employees who are not qualified technicians.
- In case of temporary fixed-term contracts for a period not exceeding 6 months, the probationary period may not exceed one month, unless otherwise provided for in the CBA.
However, the establishment of the specific duration of the probationary period in writing is a formal requirement that affects its lawfulness. The Supreme Court has ruled in this sense in its judgment from 9 December 2021 (Rec. 3340/2019), which analyses the validity of a probationary period that only established the maximum period, referring generically to the applicable CBA and the WS, without setting a specific duration.
In the case at hand, the company notified an employee of the termination of her employment contract for not successfully completing the probationary period. However, the Supreme Court considered that the termination of the employee did not take place within the probationary period, so that the company should have alleged some specific cause for the dismissal. Specifically, it declared the probationary period agreed in the contract null and void and ineffective, considering insufficient the mere reference to the period regulated in the applicable collective bargaining agreement or in article 14 of the ET. The Court points out that the fixing in writing of the exact duration of the probationary period is a minimum right of the employees, since during the probationary period either party is entitled to terminate the contract at any time and without any right to compensation. The undefined duration of the probationary period creates a serious insecurity for the employee, who does not know when the probationary period will end.
In short, the duration of the probationary period must be determined in writing at the beginning of the employment relationship, otherwise it would not be valid, as the simple reference to the maximum period regulated in the CBA or in article 14 of the WS may cause insecurity for the employee due to indeterminacy. It is a different matter if the CBA establishes a specific probationary period, in which case the mere reference to the conventional provision would comply with the requirement of validity.
