A dismissal during probation reaches many employees without warning. Clear statutory rules on notice, form and protective rights apply even in this early phase. This guide explains which notice period applies, when the employer needs a reason and in which cases a dismissal during probation can be invalid.
What is the probationary period and how long may it last?
The probationary period is a contractually agreed initial phase of the employment relationship. Employer and employee use this time to test whether the working relationship suits them. By law the probationary period may last at most six months (§ 622 (3) BGB).
It must be expressly agreed in the employment contract. Without such an agreement, the regular notice period of four weeks to the 15th or to the end of a calendar month applies from the outset.
| Feature | During probation | After probation |
|---|---|---|
| Maximum duration | 6 months | not applicable |
| Notice period | 2 weeks | 4 weeks (to the 15th or end of the month) |
| Protection against dismissal (KSchG) | Generally does not apply | Applies from 6 months of service |
| Reason for dismissal required | No (with exceptions) | Yes (where the KSchG applies) |
Notice period during probation: two weeks, any day
During probation the employment relationship can be terminated with two weeks’ notice, ending on any day. There is no tie to the 15th or the end of the month in this phase. That tie only applies once probation has ended.
An example of how the deadline is calculated: if notice reaches you on 10 March, the employment relationship ends on 24 March.
The employment contract or a collective agreement may provide for a longer period. Always check your contract first.
Does the employer need a reason for dismissal during probation?
During the first six months of the employment relationship the Protection Against Dismissal Act (KSchG) generally does not yet apply. This is true regardless of whether a probationary period was agreed. The employer therefore does not have to name a specific reason for the dismissal.
The law still does not permit arbitrary dismissal. The following dismissals can be invalid even during probation:
- Discriminatory dismissals, for instance because of origin, sex, religion or disability, which breach the General Equal Treatment Act (AGG).
- Immoral dismissals under § 138 BGB, for instance as retaliation for a justified complaint.
- Dismissals contrary to good faith under § 242 BGB, where the employer breaches the principle of good faith.
Special protection against dismissal during probation: pregnancy, severe disability, works council
Certain groups of employees enjoy special protection against dismissal even during probation.
Pregnant employees
Protection under the Maternity Protection Act (MuSchG) applies from the first day of employment. A dismissal is generally inadmissible during pregnancy and up to four months after the birth, including during probation. The employer must have been informed of the pregnancy.
Severely disabled employees
During the first six months of employment, the special protection under § 168 SGB IX does not yet apply. In this phase the employer does not need the consent of the integration office. However, the dismissal must not be discriminatory, and the representative body for severely disabled employees should be involved.
Works council members
Members of the works council enjoy special protection against dismissal. Ordinary notice is generally excluded, and this applies during probation as well.
What to do after a dismissal during probation
First check the dismissal for formal errors: written form, correct calculation of the notice period and, where a works council exists, whether it was consulted.
If you want to challenge the dismissal, the three week deadline for an unfair dismissal claim applies during probation too. Once this deadline has passed, the dismissal is generally treated as effective. The deadline runs from receipt of the notice.
Also register as seeking work with the employment agency no later than three months before the end of the employment relationship. If you only learn of the dismissal at short notice, three days remain for this. This helps you avoid a possible suspension period.
Request a qualified employment reference as well. The entitlement exists even after a short period of employment.
Probation in a fixed term employment contract
A probationary period can also be agreed in a fixed term employment contract. It must, however, be in reasonable proportion to the length of the contract. For a contract fixed at one year, a six month probationary period is generally still permissible; for shorter fixed terms it can be disproportionate.
If no probationary period is agreed, the fixed term contract generally cannot be terminated by ordinary notice during its term. This is different where the contract or a collective agreement expressly provides for a right of termination.
Common employer mistakes when dismissing during probation
Employers make mistakes too. In the following cases the dismissal can be invalid:
| Mistake | Why it is a problem |
|---|---|
| Dismissal given only verbally | Dismissals must be given in writing (§ 623 BGB) |
| Works council not consulted | Obligation under § 102 BetrVG where a works council exists |
| Dismissal by email or WhatsApp | Electronic form is not sufficient |
| Notice period calculated incorrectly | Can render the dismissal invalid |
| Dismissal despite maternity protection | Invalid without an official exemption |
Frequently asked questions about dismissal during probation
Can I be dismissed during probation without a reason?
In principle yes, since the Protection Against Dismissal Act usually does not apply during the first six months. However, the dismissal must not be discriminatory, immoral or contrary to good faith.
How long is the notice period during probation?
Where a probationary period has been agreed, the notice period is two weeks (§ 622 (3) BGB). It runs from receipt of the notice and can end on any day.
Am I entitled to holiday during probation?
Yes. With every full month of employment you acquire one twelfth of your annual holiday. You only obtain the full entitlement after six months.
Can I resign during probation myself?
Yes, as an employee you can also give two weeks’ notice if a probationary period has been agreed.
Do I get unemployment benefit after a dismissal during probation?
If the employer dismissed you, you are generally entitled to unemployment benefit, provided you meet the qualifying period. If you resign yourself, a suspension period may apply.
Does special protection for pregnant employees also apply during probation?
Yes. Maternity protection applies from the first day of employment. A dismissal during pregnancy is generally inadmissible, including during probation.
This article provides general information and does not replace individual legal advice. Every case is different. If you have specific questions, we recommend seeking legal support at an early stage.
