Trial period

Notion

Before making a long-term commitment, employers and employees often need a trial period to determine if they are a good fit. During the trial period, the employer can more easily release him/herself from his/her obligations in case the employee does not suit him/her or the quality of his/her work is not completely sati.

Duration of the trial period

Given the purpose of the trial period, the notice period is particularly short. In order to prevent the employer from abusing this situation, the duration of the trial period is limited in time, particularly in the case of short fixed-term contracts.

Presumption

The parties often assume that a trial period exists at the beginning of each employment contract. The trial period is presumed in certain situations but is not 3 months, contrary to what some people think.

In the case of a fixed-term contract, there is no trial period, unless otherwise agreed. It will be possible to introduce a trial period of limited duration.

Wrongful termination

The protection against wrongful termination is reduced during the trial period, as the employer should be able to terminate the employment contract more easily if he/she realizes that the employment relationship will not be able to last. This does not mean, however, that the employer can use any reason to terminate the contract.

Termination at an inopportune juncture

During the trial period, an employee tells her employer that she is pregnant or becomes ill. What can the employer do? Can he/she dismiss her during the trial period or is she protected from termination at an inopportune juncture?

Extension of the probationary period

The purpose of the probationary period is to allow the employer to evaluate the employee's performance and to determine whether he or she is suitable. For this reason, the Code of Obligations provides that absences of the employee for certain reasons have the effect of extending the probationary period.

However, not all absences of the employee are affected. This is important because, after the probationary period, the employee is fully protected against termination at an inopportune juncture and wrongful termination.

An employee takes unpaid leave during her trial period and then announces her pregnancy after 3 months of effective employment. An employee becomes unfit for work several times during the trial period. Is the probationary period extended in these situations? Can the employer dismiss the employee or are these employees protected against termination at an inopportune juncture?

Holidays

Taking holidays during the trial period is not prohibited by law. However, it remains delicate insofar as it partially prevents the employer from being able to evaluate the employee's performance and decide whether or not to continue the employment relationship.