The existence of a probationary period is common to all employment contracts, both fixed and temporary . It applies at the beginning of the contract, and its purpose is for the employer to test the employee’s ability to perform the tasks for which he or she was hired. This is important because the Labor Statute itself establishes that the probationary period is invalid if the employee has previously performed the same functions for the same company regardless of the contract.
This is not a “benefit” just for the entrepreneur. The employee can also evaluate the characteristics of the job and decide whether or not to continue.
The probationary period must be agreed upon between the employee and the employer, that is, it must appear in the contract and be accepted after being signed by both parties.
How the probationary period is regulated
Probation is regulated by Article 14 of the Workers Act , which states that: “A probationary period may be agreed upon in writing, subject to the time limits which, if necessary, are established in collective bargaining agreements.” Consequently, it is not compulsory and each company may set it, always subject to the limits set out in its agreement.
Length of trial period
Although the probationary period is agreed upon by the parties, there are maximum time limits determined by the type of contract and the position held. For example, for employees with a technical background it may never exceed 6 months, and for other employees the maximum limit is 2 months.
This limit also has exceptions. For small companies with less than 25 employees and for non-technical workers, it can be extended to 3 months. In the case of temporary contracts of 6 months or less, the probationary period has a maximum limit of one month.
How the probationary period is established
Probationary periods are set by contractual agreement between the two parties, although there are a number of restrictions that must be followed in order for them to be valid. It is important to note that if they are not met, the termination will be invalid . They are as follows:
- The agreed upon term must be explicitly stated in the written employment contract . If it were in a verbal contract, this issue could not be affirmed because it would always be a confrontation between the words of the employee and the word of the employer. The truth is that this clause is necessary so that some assurance can be given to the former because if he is fired, the days he would have worked would be counted.
- In no case can it be higher than what is set forth in the Labor Statute or the collective bargaining agreement of a particular line of business. In any case, a maximum of 6 months is set for skilled technicians, 3 months for other employees, and one month for temporary contracts. In most cases, contracts include trial periods of 15 days to one month, although this period varies from sector to sector.
In the event that none of these circumstances come to pass, the dismissal will not be valid, even if the opposite is agreed. It should be remembered that Spanish labor law acts as a bottom line to avoid any abuse.
Consequences of failing the test
The main consequence of not passing the probationary period is that the contract can be terminated without any compensation to the employee. In other words, termination will be free. This is one of the cornerstones to consider because the main issue is to demonstrate whether or not there was poor performance.
Dismissals for failing tests will have the same treatment as disciplinary ones. This aspect is important because the reasons are the same, mostly lack of adjustment to the job, incompetence, levity, or absenteeism. The difference is that in most cases there are fewer formalities to be observed.
In this sense, it should be noted that employment law generally agrees with companies when they believe that the test was not satisfactorily completed. There are two aspects that are not mandatory and are mandatory in other circumstances:
- Notification is mandatory when contracts are not renewed, but not when probationary periods are not met . In practice, this means that dismissal can be done from one day to the next at any time during the test. It is common in small companies that employees are not notified in advance.
- The company is not required to give notice of termination in writing, although it is advisable to do so in the event of possible legal action in the case. will be sufficient This means that verbal notice . It is important to consider this issue, because unless there are exceptional circumstances, it will be the main condition of the company.
Consequently, the company may at any time express its willingness to terminate the contract because it believes that the inspection has not been passed. In SMEs it is customary not to notify in writing, while in large companies this practice is more common.
However, the employee has certain rights that are inalienable and should be made aware of in order to declare them in due time. These aspects must be respected, even if the termination was due to a failed test:
- The company must pay a prorated portion of the extraordinary payments if they were not prorated. If they are not paid, they can be claimed in the appropriate court.
- The company must pay for vacation days as economic compensation because they will no longer be used. This is one of the issues that must be included in the settlement and should be taken into account in order to avoid any problems or prosecution after the fact.
- The company is required to register from the employee’s first day with Social Security because the time worked will be counted in determining seniority for benefits. The dismissed worker will add the days or months worked to his or her length of service and will be eligible for subsidies and pensions.
If any of these aspects are violated, the company can be sued in social jurisdiction . In short, the company must pay compensation even if the employee fails the test.
Rights of employees and employers during the probationary period
The main right that both the employee and the employer have during the probationary period is to terminate the contract without notice, even without giving a reason.
While this may seem in general to leave the employee in a more vulnerable position, since they are not entitled to compensation for termination or termination , it also poses a risk to the company. In this case, not getting a notice period can leave you in a job that you need to close urgently .
In other concepts, the worker can enjoy the same rights and obligations as other workers, always according to the characteristics of each job.
A special case is when the worker is on temporary leave for circumstances that are covered by social security benefits, such as temporary disability (sick leave) or paternity or maternity leave. Since the employee was not effectively employed during this time, it does not count as a probationary period, it is interrupted. Of course, this should always be reflected in your employment contract.
What happens when the trial period is over?
If the trial period is over and neither party, the employee and the employer, has stated otherwise, the employment contract will continue on the agreed terms . Neither party has to do anything or show an interest in continuing the employment relationship.
The only change is that from now on, if the employee wants to leave their position, they will have to give advance notice and the employer will compensate for the termination, depending on the type of termination.
All time spent as a probationary period will be counted for all purposes as time worked to determine the employee’s seniority.
Termination of employment during the probationary period
If an employee is terminated during the probationary period, not only will the employee be paid contributions for all those days, but, of course, he or she is entitled to a settlement . All economic concepts must be met: pro-rated portion of wages, unused vacation and overtime or other concepts to which you are entitled.
The only difference, as we pointed out, is that regardless of the type of contract you are not entitled to compensation.
Can a probationary period be terminated?
Yes, the probationary period may be interrupted in any of the following instances affecting the employee during the probationary period, and always by agreement of the parties:
- Temporary disability.
- Retention for the purpose of adoption
- Risk during pregnancy
- Risk during lactation
- Gender-based violence
Can I be fired during my probationary period?
Not only can you be fired during the probationary period, but since it is a bilateral agreement, the employee can also terminate the employment contract during the probationary period.
What rights does the employee have during the probationary period?
The employee will have rights and responsibilities appropriate to the job he or she is doing as if he or she were a full-time employee .
However, you will not have rights arising from the resolution of the employment relationship, which, as we have said, may arise at the request of either party in the course of their performance.