Probation period: two months at most, but under which rules?
The probation clause in an employment contract: maximum length, right to terminate, payment of wages and entitlements, SGK notification, effect on seniority, probation in fixed-term contracts and common mistakes.
Whether a new employee fits in becomes clear in the first weeks. The Labour Law recognises a probation period clause that lets both sides part easily during this time. This flexibility, however, applies only if certain rules are followed.
Five basic rules
1. It must be agreed in writing. A probation period does not arise automatically; it must be written expressly into the employment contract. If the contract has no probation period, normal termination rules apply from day one.
2. It lasts at most two months. An individual employment contract can set a probation period of at most two months. If there is a collective agreement, it can be extended up to four months. A probation period written as longer than two months is invalid for the excess.
3. Termination is without notice or compensation. During probation, both employer and employee may terminate the contract without giving notice and without paying compensation. Giving a reason is not required; however, if the termination is based on a discriminatory ground, compensation for breach of the principle of equal treatment may arise.
4. Wages and other entitlements are paid. Even if the contract is terminated during probation, the employee is paid wages for the days worked and any other entitlements (e.g. pro-rated benefits).
5. Social security notification is made. Probation is insured employment too. The hiring notification must be filed before the employee starts: Hiring notification
Frequently asked questions
Does the probation period count towards seniority? Yes. If the employee continues working after probation, the probation period is included in seniority for severance pay, annual leave and the six months' seniority required for job security.
Can the probation period be extended? The parties may extend a shorter period, provided they stay within the two-month limit. Whether days on sick leave or absence are added to the probation period should be stated expressly in the contract.
Can a fixed-term contract have a probation period? Yes. A probation clause can also be included in a fixed-term contract.
Which exit code is used for termination during probation? Code 01 is used for termination by the employer and code 02 for termination by the employee: SGK exit codes
Termination after probation ends? Once probation is over, the general termination rules apply: notice period, severance pay and, where the conditions are met, job security. See Termination by the employer · Notice period calculator
Common mistakes in practice
| Mistake | Consequence |
|---|---|
| "Let's try for a week first, then we'll register you" | Undeclared employment; administrative fine |
| Probation period not written into the contract | Normal termination rules apply |
| A three-month probation period written in | The part over two months is invalid |
| Terminating verbally | Difficult to prove; document the date of termination and who terminated |
| Not paying wages for the days worked | Wage claim and interest |
Even for termination during probation, we recommend preparing a short written notice: Termination notice
Legal basis: Labour Law No. 4857 art. 15.