Does the COVID-19 Pandemic Extend a Trial Period under German Labour Law?
By Pascal Verma, nbs partners
Before employers commit themselves permanently to an employee, they are usually interested in testing the employee’s performance and reliability. This interest is realised by the waiting period, which must be fulfilled in order for the Dismissal Protection Act to apply. It leads to a legally required trial period of six months. During the trial period, the employer can terminate the employment contract without giving reasons.
Due to the coronavirus pandemic and the introduction of short-term work, many employees have not worked under regular conditions for weeks. As a result, employers were unable to use the trial period to check whether they were pleased enough with the employee’s performance and reliability that they wished to continue the employment contract after the trial period. Since the Dismissal Protection Act is mandatory law, the waiting period cannot simply be extended by contract.
However, since case law has also recognised in individual cases that an extension is appropriate, it has approved a legal structure which can be used to extend the trial period.
The parties to the employment contract can agree on a termination contract with a termination date that comes after the end of the regular notice period. The trial period is then extended by the period between the regular termination date and the termination date after the extended period. If the employer does not want to continue the employment contract after the extended trial period, the employment relationship ends on the date specified in the termination contract. Otherwise, the parties may annul the termination contract.
It is imperative that the termination contract be concluded during the waiting period. Furthermore, the extended trial period must remain moderate. The Federal Labour Court accepted four months. Furthermore, the termination contract must be concluded in particular against the background that the employee has not yet proved himself suffciently and the employer therefore intends to terminate the contract during the trial period. The employer must intend and promise to reinstate the employee if he meets the expectations during the extended trial period. This should be expressed in the preamble of the termination contract.
Pascal VermaGGI member firm
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Pascal Verma is Attorney-at-Law specialised in Labour Law and Partner at nbs partners. He specialises in advising employers on labour law and companies on data protection law.
Published: Labour Law Newsletter, No. 09, Autumn 2020 l Photo: bunditinay - stock.adobe.com