What Happens When I Am Dismissed During My probationary period?

probationary period "AS PER COLLECTIVE AGREEMENT" IN THE EMPLOYMENT CONTRACT

According to the ruling of 24 September 2024 issued by the Supreme Court (Social Chamber), the omission of the duration of the probationary period in an employment contract may give rise to an unfair dismissal where the contract is terminated on the grounds that the employee failed to pass that period.

Article written by

Conesa Legal

At Conesa Legal, a legal advisory firm based in Barcelona, we have a team of lawyers specialized in all areas of law. We also provide comprehensive advisory and management services covering payroll, tax and accounting, and corporate compliance for both companies and self-employed professionals. We stand out for our expertise in labor law and social security, offering a highly specialized and personalized service since 1976. Our services include both preventive and reactive legal advice and representation, tailored to the needs of businesses and workers alike. Our multilingual team provides legal assistance in English, French, and Spanish, and is well prepared to support a broad range of local and international clients, whether they are companies seeking comprehensive legal solutions or individuals in need of personalized legal advice.

View professional profile

Regulation of the probationary period

Article 14 of the Workers' Statute sets out the key features of the probationary period, both from the employer's and the employee's perspective. Its duration is governed by the applicable collective bargaining agreement, whether national, provincial, sector-wide or company-level.

"AS PER COLLECTIVE AGREEMENT" does not always hold up in employment contracts:

In the above-mentioned ruling, the Supreme Court declared the termination of employment to be unfair, given that the contract had simply referred to "as per collective agreement" in the section corresponding to the probationary period. The Court analysed Article 14 of the Workers' Statute, finding that the absence of a specific duration for the probationary period creates serious legal uncertainty for the employee.

Implications of Collective Bargaining Agreements

The Court also noted an important qualification: "the position would be different if the collective bargaining agreement prescribed a specific duration for the probationary period, not merely a maximum duration; in that case, the probationary period agreed in accordance with the collective bargaining agreement would be valid."

The Right to Contractual Clarity

The ruling also underlines the employee's right to have the exact duration of the probationary period set out in writing, noting that the absence of this information had created serious legal uncertainty as to the scope of a contractual clause that allowed for ad nutum (at-will) termination of the employment contract without any compensation. Consequently, since the probationary period was found to be invalid, the termination of the employment contract was deemed to constitute an unfair dismissal.

Final Thoughts on the probationary period:

The absence of a specific duration for the probationary period may result in a dismissal being declared unfair where it is based on the employee's alleged failure to pass that period. The Court emphasises the importance of clarity in employment contracts, stressing that the lack of a defined duration creates significant legal uncertainty for the employee.

For further information on dismissals, please visit our website.