Termination During the Probationary Period: Deadlines, Rights & Mistakes
Termination during the probationary period is one of those employment law procedures where employers quickly stumble. Short deadlines, formal hurdles, special cases. Much of it looks simpler than it is. Anyone terminating during the probationary period does have more room to manoeuvre than afterwards, but that room isn't unlimited. A formal mistake can render the termination invalid and create costs. This article sets out the key rules, names the most common mistakes, and shows what still needs handling after the separation. Factual, compact, from the employer's perspective.
Termination during the probationary period: what employers need to know
During the first six months of an employment relationship, a relaxed right of termination applies. The general Dismissal Protection Act (Kündigungsschutzgesetz) doesn't yet apply during this phase. That means: the employer can terminate during the probationary period without giving a reason and doesn't have to provide social justification.
That's exactly the difference from termination after the probationary period. After that, a recognised reason for termination is needed, for example operational, personal, or conduct-related. During the probationary period, that hurdle falls away. The separation is legally easier to carry out.
Easier, however, doesn't mean informal. Anyone who breaches the written form requirement, miscalculates the deadline, or overlooks a special case risks an invalid termination. The employment relationship then continues, even though it was meant to end.
More than just administrative effort is at stake. A failed termination costs time, ties up resources, and strains relationships within the team. It's therefore worth taking a close look at the details.
Termination deadlines during the probationary period: statutory rules at a glance
The statutory basic deadline is clearly regulated. Under Section 622(3) BGB, the notice period during an agreed probationary period is two weeks. This deadline applies to both sides, for employers as well as employees.
The difference from the regular deadline matters. Without a probationary period agreement, the longer basic deadlines under Section 622 BGB apply, usually four weeks to the 15th of the month or to the end of the month. The shortened two-week deadline therefore requires a validly agreed probationary period.
Calculating it is simpler than many assume. The two-week deadline isn't tied to a specific calendar date. It runs from the day the notice of termination reaches the employee.
An example: if the notice reaches the employee on a Monday, the employment relationship ends fourteen days later. What matters is receipt, not the date it was sent. Employers should therefore always document receipt, for example through personal handover with a witness.
A common mistake concerns the end of the deadline. The termination itself must still be issued within the probationary period. Receipt must occur before the six months are up. The end of the notice period itself may fall after that.
What applies if the employment contract sets shorter or longer deadlines?
Contractual deviations are possible, but not in every direction. A longer deadline than two weeks can be set out in the employment contract without further ado. Many companies agree, for example, on four weeks even during the probationary period.
With a shorter deadline, caution is needed. The two-week deadline cannot be undercut by individual contract. Shortening it is generally only permissible via collective bargaining agreement, and only within the framework set there.
A special case applies to short casual employment relationships. Here, the law allows deviating rules under certain conditions. For classic permanent or specialist positions, however, the two-week limit remains in place.
For employers, that means: checking the specific contract and any applicable collective agreement is essential. Where a longer deadline applies, that one is decisive. Anyone using the wrong deadline risks a dispute over the end date. Details can be looked up in an overview of termination deadlines.
How long can the probationary period last at most?
The statutory maximum is six months. A probationary period, for the purposes of the shortened notice period under Section 622(3) BGB, cannot be agreed for longer than that. This limit is deliberately set and cannot be extended by the employment contract.
What happens if too long a probationary period is set? If, say, an eight-month probationary period is agreed, the shortened notice period only applies for the first six months. After that, the regular deadlines apply.
A second deadline runs in parallel. General protection against dismissal under the KSchG kicks in from the seventh month of employment, regardless of what the contract says about the probationary period. Anyone terminating after six months is, legally speaking, no longer terminating "during the probationary period".
Termination by the employer: requirements and common mistakes
Even the simplified termination follows fixed formal requirements. The most important point: written form under Section 623 BGB. The termination must be on paper and personally signed. A termination by email, WhatsApp or text message is invalid.
The second critical point is receipt. The termination only becomes effective once it actually reaches the employee. With personal handover, receipt applies immediately. By post, what counts is when it's placed in the letterbox, not when it's collected.
Typical mistakes cost employers validity. These include:
- Termination without a handwritten signature, or only as a scanned file
- Signature by a person without authorisation, and no proof of power of attorney
- No proof of receipt by the employee
- Receipt only after the six-month limit has passed
The termination letter itself stays lean. It names the parties to the contract, clearly states the termination, and specifies the end date or refers to the applicable deadline. Wording such as "alternatively, ordinary termination at the earliest possible date" creates certainty if the deadline calculation is later disputed.
Care is needed with the signature. If an authorised signatory or HR manager issues the termination, their authority to represent the company should be evident. Otherwise, the employee can reject the termination. A template for a termination letter can rule out formal mistakes from the outset.
Does the employer have to state a reason for termination?
No. During the probationary period, the employer does not have to give a reason for termination. Since the general Dismissal Protection Act doesn't yet apply, there's no obligation to provide social justification. A brief termination letter without explanation is sufficient.
There are limits, though. The termination must not be immoral or in bad faith. Nor may it violate the anti-discrimination provisions of the AGG. Termination because of origin, gender, religion, age or disability is impermissible, even during the probationary period.
On top of that come cases of special protection against dismissal. These apply regardless of the probationary period and can block a termination even where no reason needs to be given. More on that in the next section.
Special cases: when protection against dismissal applies even during the probationary period
Special protection against dismissal knows no probationary period. Certain groups of people are protected from day one. Anyone who overlooks this terminates into thin air and risks significant consequences.
Pregnancy and maternity protection. Under the Maternity Protection Act, terminating a pregnant employee is generally impermissible. This protection also applies during the probationary period. Termination is only possible with prior approval from the responsible authority. If the employer didn't know about the pregnancy, it can still be reported retrospectively within a certain deadline.
Severe disability. For severely disabled people, special protection against dismissal under SGB IX applies. This protection, however, only takes effect after six months of continuous employment. In the first six months, termination without the integration office's consent is still possible.
Parental leave. Anyone on parental leave, or who has validly requested it, enjoys special protection against dismissal. Here too, termination is only permissible with official approval, again regardless of the probationary period.
The consequences of a breach are clear. A termination issued without the required approval is invalid. The employment relationship continues, and claims for pay due to delayed acceptance of work can arise. Employers are well advised to briefly check for a special case before every probationary-period termination. Legal advice on employment law protection against dismissal is worthwhile if in doubt.
Summary dismissal during the probationary period: when is it permitted?
Even during the probationary period, an extraordinary, summary dismissal is possible. It's based on Section 626 BGB. It requires good cause that makes it unreasonable to continue the employment relationship even until the end of the two-week notice period.
The requirements are strict. Good cause only exists in the case of serious breaches of duty. In many cases, a prior warning is also required, unless the misconduct is so severe that a warning becomes unnecessary.
Typical examples from practice:
- Theft or embezzlement at the employer's expense
- Physical assault or serious insults in the workplace
- Persistent refusal to work despite being asked to do so
- Feigning incapacity to work
The two-week deadline under Section 626(2) BGB must be observed. The summary dismissal must be issued within two weeks of the employer learning of the grounds for dismissal. Anyone who hesitates loses the right to dismiss summarily.
In practice, summary dismissal during the probationary period is rarely needed. In most cases, ordinary termination with the short two-week notice period is sufficient. The extraordinary variant remains reserved for exceptional cases.
What employers need to settle after the termination
Once the termination has been issued, the work isn't done. Several points belong to a clean close. A short checklist helps make sure nothing is overlooked.
Reference letter. The employee is entitled to a reference letter even after a short period of employment. More on that below in the FAQ.
Remaining holiday. The pro-rata holiday entitlement must be calculated and either granted or paid out. One twelfth of the annual holiday entitlement per full month of employment is the rule of thumb.
Garden leave. Releasing the employee from work for the remaining time is often sensible. It should be done in writing and specify whether it's offset against remaining holiday.
Return of work equipment. Laptop, company phone, keys, access cards and company car need to be reclaimed. A handover list creates clarity.
Social insurance and pay. The employee must be deregistered from social insurance. The final payslip, the income tax certificate, and the employment certificate for the employment agency need to be issued.
A structured offboarding process saves time and avoids later claims. Much of it can be standardised, so that every separation follows the same pattern.
Avoiding bad hires: what the probationary period can really achieve
The probationary period is a testing tool, not a repair tool. It shows whether the professional and cultural fit is right. But it can't fix a weak initial selection. Anyone who has to terminate during the probationary period has often made the real mistake earlier.
A bad hire is expensive. Lost onboarding time, another search, lost productivity. For a key position, the costs add up quickly. For the Mittelstand, competing for specialists without a big brand name, that weighs especially heavily.
Two levers reduce the risk. The first is proper shortlisting. When professional requirements and cultural fit are cleanly checked before hiring, the likelihood of a separation drops. This is exactly where management diagnostics comes in: structured procedures instead of gut feeling in the interview.
The second lever is onboarding. Clear expectations, defined goals for the first months, regular feedback conversations. Anyone who actively supports the probationary period spots friction early and can course-correct before a termination becomes necessary. A separate article shows which phases onboarding involves.
For hard-to-fill key positions in a picked-clean market, a precise placement is decisive. Schlagheck + Radtke combines executive search with management diagnostics and onboarding support, at our locations in Dusseldorf, Munich and Ulm, with industry focus areas in mechanical engineering, automotive and IT. Direct approach instead of job boards, discreet and precise. The goal: a placement that works both professionally and culturally, and that lasts. More on the Executive Search service page.
Frequently asked questions about termination during the probationary period (FAQ)
Can the employer terminate during the probationary period without giving reasons?
Yes, during the probationary period the employer can generally terminate without giving reasons, because the general Dismissal Protection Act only applies after six months. Exceptions exist for discrimination under the AGG, and for special protection against dismissal, for example during pregnancy or parental leave.
How much notice applies during the probationary period?
During the probationary period, a statutory notice period of two weeks applies under Section 622(3) BGB. The employment contract or a collective bargaining agreement may provide for a longer deadline; a shorter one than two weeks is only permissible via collective bargaining agreement.
What happens to holiday entitlement on termination during the probationary period?
On termination during the probationary period, a pro-rata holiday entitlement of one twelfth of the annual holiday applies per full month of employment. Untaken pro-rata holiday must be paid out. Holiday already granted beyond the pro-rata entitlement generally cannot be reclaimed.
Does general protection against dismissal already apply during the probationary period?
No, general protection against dismissal under the KSchG only applies after six months of uninterrupted employment. For employers, that means: in the first six months, termination is possible without social justification, but form and deadline must still be observed.
Does the employer have to issue a reference letter when terminating during the probationary period?
Yes, the employee is entitled to a reference letter even after a short period of employment. On request, a qualified reference with an assessment of performance and conduct must be issued; otherwise, a simple reference covering the type and duration of employment is sufficient.
Next step: placements that last
A termination during the probationary period can be handled in a legally sound way. It's better not to need one at all. Anyone who fills key positions precisely saves themselves costly separations and doesn't start from scratch every few months.
Are you filling a business-critical position and not finding suitable candidates through the usual channels? Talk to Schlagheck + Radtke. Executive search, management diagnostics, onboarding support. For clients and candidates, we are partners. Get in touch.