Without an exact duration in writing, the Supreme Court considers dismissal during a probationary period to be unfair.
We would like to inform you about a recent Supreme Court ruling of September 24, 2024, which may affect your company in terms of contracting.
The Sentence
The ruling clarifies that, if the exact duration of the trial period is not clearly specified in the employment contract, any termination during that period may be considered an unfair dismissal.
It is important that your employees’ contracts include this information accurately to avoid potential claims.
Specifically, in relation to this ruling, it is essential to review some critical points regarding the regulation of the trial period in employment contracts, especially in the field of Private Security.
This ruling addresses a case of unfair dismissal, where the validity of the trial period was questioned due to an ambiguity in the established duration. The contract of the worker in question only indicated “according to agreement” as the duration of the trial period, which generated a lack of legal precision regarding the exact end date.
Main points of the judgment
- Setting the trial period: The sectoral regulations in Private Security establish a maximum duration of two months for operational staff, without specifying an exact duration. This ambiguity in the contract of the affected worker resulted in legal uncertainty, since it was not specified when the probationary period ended.
- Right to specification in writing: Article 14 of the Workers’ Statute (ET) and current case law require that the trial period be clearly specified in the terms of the contract. It is not enough to refer generically to the maximum duration allowed by the collective agreement; it is essential to establish the exact duration to avoid possible conflicts and protect the rights of the worker.
- Consequences of lack of precision: The absence of a specific duration in the contract resulted in the nullity of the trial period. This lack of validity meant that the employee’s dismissal was considered an unfair dismissal. The company was forced to rehire the employee or, failing that, compensate him.
- Recommendation for companies: It is highly recommended that, in future contracts, the duration of the trial period be specified in detail, always respecting the maximum limits established by the applicable agreement, but setting a precise date to avoid ambiguous interpretations.
You can contact us with this professional office for any questions or clarifications you may have in this regard.
