Amendments regarding the use of probationary periods

In the initial phase of a new employment relationship, the employer can agree on a probationary period with the employee. During the period, the employee has weaker job protection than otherwise and the notice period is often set shorter than what otherwise applies. The reason for the use of a probationary period is that both the employer and the employee may need to see how the employee functions in the position. It may therefore be a good idea to include a clause on a faster exit.

For temporary employment, Section 15-6, third paragraph of the Working Environment Act now stipulates that the probationary period can no longer exceed half of the duration of the employment. A similar provision has also been included in Section 15, first paragraph of the Civil Service Act. The rule of a maximum probationary period of 6 months still applies. The specification for temporary appointments will thus only have an impact on temporary appointments for a period of less than 1 year. In the case of employment of, for example, 4 months, the probationary period may not exceed 2 months.

It has previously been unclear whether a new probationary period can be agreed upon for an employee who moves from one position within a company to a new position in the same company. Through Section 15-6, fifth paragraph of the Working Environment Act and Section 15, first paragraph, of the Civil Service Act, the legislator has provided a clarification: In principle, a new probationary period cannot be agreed upon if the employee continues in the same position or in a position that is essentially similar to the position he/she has held in the same enterprise.  The provision is a codification of current law, based on case law, which puts strong restrictions on the use of a new probationary period when the employee has already a position within the company: In most situations the employer should be able to assess the employee’s qualifications and performance on the first employment – making it unnecessary to ask for a new probationary to see the performance of the employee’s work. The assessment topic will mainly be the nature of the work tasks. According to case law, it is also natural to consider whether the new position is of a "significantly different nature" than the first employment relationship. Such a situation may call for the use of a new probationary period. The assessment also includes whether the different positions require different personal qualities.  

At the same time, the legislator makes a further clarification: If an employee moves from temporary employment to a permanent position, a new probationary period can only be agreed if the employee's previous period of employment and a new probationary period together do not exceed 6 months. The employer's need to assess the suitability of the employee for 6 months is thus taken care of.

‍