Dismissal during the probation period: your rights, deadlines and options

This article describes the legal position under German law.

You have been dismissed during your probation period and are wondering what rights you still have. Many employees believe that during probation the employer can dismiss at any time and entirely „without reason“ – but German employment law is not quite that unlimited. Clear rules, deadlines and protective mechanisms apply from the first months of employment, and it is worth knowing them.

I. The probation myth: can the employer really dismiss „just like that“?

Most employment contracts provide for a probation period of up to six months. During that time a shortened notice period of two weeks often applies. That does not mean the employer can dismiss at will, or that probation is a legal vacuum.

General protection against dismissal under the Dismissal Protection Act (KSchG) usually only applies after six months of service. Even so, central protections apply from day one – the prohibition on discrimination, for instance, or special protection in cases of pregnancy or recognised severe disability.

II. Notice periods and particularities during probation

A notice period of two weeks is typical during probation. It generally applies to both sides and allows a relatively quick separation. Notice can often be given on any day, unless the contract provides otherwise.

The employer generally does not have to justify a probation dismissal on social grounds. Impermissible grounds remain off limits, however: a probation dismissal issued because of pregnancy or disability, on clearly discriminatory motives, or one that is contrary to public policy, can be challenged despite the absence of general dismissal protection. The mere fact that a dismissal is open to challenge already puts you in a better negotiating position with your employer.

What is often overlooked: even where the probation period is shortened – to three months, for example – the Dismissal Protection Act still only applies after six months. Ordinary notice of four weeks can therefore generally still be given before the six-month mark.

III. Common mistakes after a probation dismissal

People dismissed during probation often react with frustration or resignation – „there’s nothing to be done anyway“. That attitude quickly leads to strategically poor decisions.

Many employees never have the dismissal checked, even where the timing is striking – immediately after announcing a pregnancy, say, or after a longer illness. Equally common is failing to take notes and document difficult situations – disparaging remarks, bullying, repeated threats („if this continues, we’ll part ways during probation“). Later, the evidence needed to assess the dismissal is missing.

IV. Sensible steps after a probation dismissal

1. Check the formalities
   Verify that the dismissal is in writing, properly signed, observes the agreed notice period, and note when it reached you.
2. Check for special protection
   Consider whether special protective provisions might apply – pregnancy, severe disability, parental leave, carer’s leave or a works council role. Equally important are indications of discrimination on grounds of sex, age, origin, religion or other characteristics.
3. Get a short consultation with an employment lawyer
   A brief initial conversation with a specialist can clarify whether legal steps look promising or whether a more tactical negotiating strategy makes sense. Often it is about realistically assessing the chances and risks of challenging a probation dismissal.
4. Negotiate the terms
   Even if you are not pursuing a claim, matters such as a favourable qualified reference, a slightly longer period of employment, a modest severance payment or clear wording in the reference for future applications can all be negotiated.

Where the dismissal feels unfair or the timing looks suspicious, a calm assessment helps you move past a sense of powerlessness and see your options.

V. When legal advice is worthwhile

Advice on a probation dismissal is particularly worthwhile where:

• the dismissal follows closely on a sensitive event – announcing a pregnancy, severe disability, a longer illness or notice of parental leave;
• you experienced significant pressure, bullying or discriminatory remarks during probation;
• a termination agreement, waiver declarations or unusual contractual clauses are also put in front of you and their consequences are unclear;
• a strong, reliable reference matters to you, or you want to negotiate a short extension of employment or a period of garden leave.

A probation dismissal is therefore not entirely beyond your control. Those who know their rights, observe the deadlines and obtain a professional assessment can often at least limit the damage – and not infrequently achieve a result considerably better than the first impression suggested.

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Andreas Schruff is a partner at the law firm KBS Legal in Munich and a cooperation partner of abfindungshero.de