Dismissal during the probationary period in Germany

The probationary period (Probezeit) gives both employer and employee a chance to work out whether they can work together well in the long-term. Therefore a dismissal during probation is possible without giving reasons and with shorter notice periods. This article explains your rights, the notice periods and what you can do against a dismissal during your probation.

Key points at a glance:

Notice period during probation

During probation, employees and employers can give ordinary notice with a statutory notice period of two weeks:¹

• The parties must expressly agree on probationary period (employment contract or a collective bargaining agreement). 
• The mere fact that an employee is starting a new job isn’t enough. In that case, the normal statutory notice period of four weeks applies.

The two-week notice period applies until the last day of the probation. Example: an employment contract sets a three-months probation. The employee starts on 1 June, so the probation runs until 31 August:

• Either side can still give ordinary notice on 31 August using the short two-week deadline. The notice has to actually reach the other side on 31 August. 
• If the notice only arrives on 1 September, the probation is over. From then on, either a longer contractual deadline or the statutory basic notice period of four weeks applies. 

The employment contract or a collective bargaining agreement can also provide for longer notice periods during probation. A shorter one is not allowed.

The maximum length of a probationary period is six months. If the parties agreed on a longer probation, the basic notice period of four weeks kicks in once the sixth months of employment is up.²

Protection against dismissal during probation

The Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz, KSchG) does not apply during the probationary period. A probation cannot be longer than six months, whereas the KSchG only applies to employment relationships longer than six months. The employer therefore does not have to give any reasons for a dismissal in the first 6 months.

In practice, the terms “waiting period” (Wartezeit) and “probationary period” (Probezeit) are often confused. They mean different things:

• “Waiting period” refers to the statutory requirement that an employment relationship has to be longer than six months before the special protection applies, regardless of an agreed probation period. 
• A “probationary period” can vary in time, e.g. for simple tasks it can be as short as one week. For more challenging jobs, it can be of any length up to six months.

A dismissal during probation can still be invalid in the following cases:

• A dismissal must always be in writing. Verbal dismissals are always invalid.
• The employer must always consult an exiting works council.
• The special protection against dismissal for pregnant employees or new mothers after they have given birth also applies during probation. 
• Disabled employees do not enjoy special protection during the first six months of the employment.³
• A dismissal during probation (or during the first six months of employment) must not be based on origin, sex, religion or similar grounds. In practice, this is difficult to prove.⁴

Summary dismissal during probation

A summary dismissal (fristlose Kündigung) is also possible during probation and ends the employment relationship with immediate effect. It does, however, require a serious reason (wichtiger Grund). There have to be facts, which makes it unreasonable to continue the employment relationship until the end of the ordinary notice period. Since the notice period during probation is usually quite short, in many cases a summary dismissal fails for just that reason.

Probation and fixed-term contracts

The parties can agree on a probationary period in both a fixed-term contract or an employment contract for an indefinite time.

Where employer and employee agree only on a probationary period (for example: six months), they have an employment contract for an indefinite time with a preliminary probation. In practice, this means: during the first six months, the shortened notice period apply. Once the six months are up, the employment relationship carries on with a longer agreed or statutory notice period.

The parties can also agree on a fixed-term probationary contract. That means: they agree on a fixed-term employment relationship for six months. During those six months, notice can then only be given if the parties have expressly provided for that possibility in the contract.⁵ Once the six months are up, the fixed-term probationary contract ends automatically by lapse of time.

Severance pay and probation

As the special protection in terms of KSchG does not apply, the chances for severance pay during probation are not that high. As the employer can issue an ordinary dismissal without any reasons, the litigation risk is low and the employer usually isn’t willing to pay a severance.

But there are exceptions:

• If the employer issues a summary dismissal but can’t prove the serious reasons, the employment relationship does not end immediately, but with the ordinary notice period. The employee then either receives the salary for the duration of the notice period, or the parties agree on a severance pay covering that same period. Employees must be aware of the possible suspension period (Sperrzeit) on unemployment benefits.
• An ordinary dismissal during probation can further be invalid because it was not in writing, a work council was not consulted, an employer did not comply with the special protection for pregnant employees etc. In these cases the employer either has to issue another dismissal with a later termination date or has to negotiate a termination agreement. The employer carries a much higher risk, especially if the 6 months are over, and is therefore willing to a severance pay.

What you can do about a dismissal during probation

Employees can file an action against an unfair dismissal within three weeks of receiving the dismissal. It’s only worth doing, where there is real doubt about the validity of the ordinary dismissal. That includes breaches of general rules, such as the written-form requirement, special protection against dismissal or failure to consult the works council.

Things look different with a summary dismissal. Here, the employer has to prove the requirements of a summary dismissal (serious reason, continued employment is unreasonable etc.). The chances of success can be higher, even where the dismissal was during probation.

Frequently asked questions (FAQ)

1. Section 622 subsection 3 BGB ↩︎
2. BAG 5.12.2024, 2 AZR 275/23 ↩︎
3. Section 173 subsection 1 SGB IX ↩︎
4. Section 1 Allgemeines Gleichbehandlungsgesetz (AGG)  ↩︎
5. Section 15 subsection 4 TzBfG ↩︎