Dismissal during the probationary period - What rights do employees have?

Being made redundant during the probationary period often comes as a surprise to many employees. Anyone who has only just started a new job often feels powerless — yet clear legal rules apply even during the probationary period. In this guide, you will find out what rights you have, what notice periods apply, and when a dismissal during the probationary period may be invalid.

What is the probationary period and how long does it last?

The probationary period is a contractually agreed initial phase of the employment relationship. It serves both parties — employer and employee — to test the working relationship. By law, the probationary period may not exceed six months (Section 622(3) of the German Civil Code).

Important: The probationary period must be expressly agreed in the employment contract. Without such an agreement, the standard notice period of four weeks applies, effective from the 15th or the end of a calendar month.

What notice period applies during the probationary period?

During the probationary period, the employment contract can be terminated with just two weeks’ notice — and on any day. It does not therefore have to be terminated on the 15th or at the end of the month, as is customary after the probationary period.

For example: if you receive notice of termination on 10 March, your employment relationship ends as early as 24 March.

However, your employment contract or collective agreement may provide for a longer notice period. You should therefore always check your contract.

Does the employer need a reason for termination?

During the first six months of the employment relationship, the Employment Protection Act (KSchG) generally does not yet apply — regardless of whether a probationary period has been agreed. This means that the employer does not have to give a specific reason for termination.

However, this does not mean that dismissal during the probationary period is arbitrary. The following dismissals may also be invalid during the probationary period:

• Discriminatory dismissals (e.g. on grounds of origin, gender, religion or disability) contravene the General Equal Treatment Act (AGG).
• Unconscionable dismissals under Section 138 of the German Civil Code (BGB), such as in retaliation for a justified complaint.
• Dismissals in breach of good faith under Section 242 of the German Civil Code (BGB), where the employer violates the principle of good faith.

Special protection against dismissal — even during the probationary period

Certain groups of employees enjoy special protection against dismissal even during the probationary period:

Pregnant employees: Protection against dismissal under the Maternity Protection Act (MuSchG) applies from the first day of the employment relationship. Dismissal is generally prohibited during pregnancy and for up to four months after childbirth — even during the probationary period. The employer must be informed of the pregnancy.

People with severe disabilities: During the first six months of the employment relationship, the special protection against dismissal under Section 168 of SGB IX does not yet apply. The employer does not require the consent of the Integration Office during this phase. Nevertheless, the dismissal must not be discriminatory, and the representative body for people with severe disabilities should be involved.

Works council members: Members of the works council enjoy special protection against dismissal. Ordinary dismissal is generally ruled out — this also applies during the probationary period.

What to do after being dismissed during the probationary period?

If you have received a notice of dismissal, you should act promptly:

Check the notice: Has the written form been complied with? Is the notice period correct? Has the works council — where applicable — been consulted?

Observe deadlines: If you wish to contest the dismissal, the three-week deadline for bringing an action for unfair dismissal also applies during the probationary period. Once this deadline has passed, the dismissal is generally considered valid.

Notify the Jobcentre: Register as a jobseeker no later than three months before the end of your employment. If you only find out about the dismissal at short notice, you must register within three days to avoid a potential waiting period.

Request a reference: Even after a short period of employment, you are entitled to a qualified reference.

Probationary period and fixed-term employment contract

A probationary period may also be agreed in the case of a fixed-term employment contract. However, the probationary period must be proportionate to the duration of the contract. For a contract limited to one year, a six-month probationary period is generally still permissible; for shorter fixed terms, it may be disproportionate.

If no probationary period has been agreed, the fixed-term contract cannot generally be terminated with notice during its term — unless the contract or a collective agreement expressly provides for a right of termination.

Common mistakes regarding termination during the probationary period

Employers make mistakes too. In the following cases, the termination may be invalid:

Frequently asked questions (FAQ)

Can I be dismissed without cause during the probationary period?

In principle, yes, as the Employment Protection Act does not generally apply during the first six months. However, the dismissal must not be discriminatory, contrary to public policy or in breach of good faith.

How long is the notice period during the probationary period?

If a probationary period has been agreed, the notice period is two weeks (Section 622(3) of the German Civil Code). It runs from the date the notice of dismissal is received and may end on any day.

Am I entitled to holiday leave during the probationary period?

Yes. You accrue one twelfth of your annual leave entitlement for every full month of employment. However, you will only be entitled to your full annual leave entitlement after six months.

Can I give notice myself during the probationary period?

Yes, even as an employee, you can give notice with two weeks’ notice if a probationary period has been agreed.

Am I entitled to unemployment benefit if I resign during the probationary period?

If you have been dismissed by your employer, you are generally entitled to unemployment benefit — provided you have completed the qualifying period. If you resign, you may face a waiting period.

Does the special protection against dismissal for pregnant women also apply during the probationary period?

Yes. Maternity protection applies from the first day of employment. Dismissal during pregnancy is generally not permitted, even during the probationary period.

This article is for general information purposes only and does not replace individual legal advice. Every case is different — if you have specific questions, we recommend seeking legal advice at an early stage.