The trial period is intended for both parties to get to know each other in everyday working life. If one party does not meet the expectations of the other, the employment contract can be terminated immediately without any special provisions. A long-term collaboration is only possible if there is mutual trust and if the employee meets the requirements and is sufficiently motivated by the job and the company.
2. Calculation of the duration of the trial period
Unless the employment contract stipulates otherwise, the usual trial period is 3 months. Labour law considers the first month after taking up employment as the trial period (Art. 335b para. 1 CO). The trial period can be contractually extended to a maximum of three months (Art. 335b para. 2 CO).
In calculating the duration of the trial period, calendar days rather than working days must be taken into account, even in the case of part-time employment. The probationary period ends on the day corresponding to the date of commencement of employment in the following month.
3. Extension of the trial period
If the employee is unable to work for a specific reason during the trial period, the law provides for an extension of the trial period. With the inability to work, both parties do not have the opportunity to get to know each other on a daily basis. Therefore, the probationary period is extended by the duration of the incapacity. Depending on the circumstances, the probationary period may therefore last longer than three calendar months.
The law exhaustively lists the reasons for extending the trial period (Art. 335b para. 3 CO). The trial period is legally extended if work is interrupted due to illness, accident or the fulfilment of a legal obligation incumbent on the employee, such as military service.
The law does not mention anything about unpaid holidays or leave during the probationary period, as the employer is not obliged to grant them during this period. If an employer decides to waive the presence of his employee, he cannot subsequently speak of a shortened trial period. It is possible, however, that the employer and the employee agree in writing and before going on holiday or unpaid leave that the probationary period will be extended because of the employee’s absence on holiday.
However, if the employment contract already provides for a trial period of three months, the trial period will not be extended, because of the legal maximum duration of the trial period of three months. This is the case even if the employer signs a written extension before the holiday. In such a case, the three-month trial period originally stipulated in the contract is valid.
4. Dismissal during the trial period
During the probationary period, either party may terminate the employment contract at any time by giving seven days’ notice (Art. 335b para. 1 CO; Art. 346 para. 1 CO). The parties may also agree on a longer or shorter notice period, which will be specified in the employment contract.
During the probationary period there is no period during which dismissal of an employee is prohibited (Art. 336c para. 1 OR), the employer can terminate the contract at any time (Art. 335b para. 1 OR). If the employer terminates the contract during the trial period, the dismissal is valid even if the employee is pregnant. The question arises, however, whether such a dismissal is abusive or discriminatory (Art. 336 CO; Art. 3 AGG).
Also during the trial period, some dismissals may be unfair. The court will refer to the purpose of the trial period to decide. During this period both parties have to assess whether a long-term cooperation could be fruitful. If one party does not meet the expectations of the other, the employment contract can be terminated immediately without any special provisions. Therefore, a dismissal will rarely be considered unfair during the trial period.
