Probation Period

What is Probation?

The probation period is a period established upon starting a new job. In practice, the probation period allows the employer to objectively assess whether the new employee is suitable for the job based on their capability, skills, performance, attendance, and general conduct, while also giving the new employee the opportunity to see if they like their new job and surroundings.

Length of Probation period

The first six months of employment constitute the probationary period and may not be extended beyond this period.

Parties may agree for a shorter period, however, once this is agreed upon by the parties, such period is binding by law and can only be extended up to the maximum limit contemplated by law.

In the case of a contract of service, or a collective agreement, in respect of employees holding technical, executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period is of one year, unless otherwise specified (for a shorter period) in the contract of service or in the collective agreement.

Where the employee, in case of fixed term contracts has been re-employed in the same category by the employer for a fixed or indefinite term within one year from the date of termination of a fixed term contract of service, the aggregate probationary shall in no case be longer than that provided by law as explained below.

Termination during Probation

During probation the employer may terminate employment, at will, without incurring any liability. If an employee has been in the employment of the same employer continuously for more than one month during the probationary period, the party terminating the contract must give the other party a week’s notice of the termination of employment. The whole probationary period is payable with the rate of wage agreed, which wage must not be lower than what is provided by law.

Termination after probation

Following the lapse of the probationary period, an employment contract for an indefinite time may be terminated, by giving notice as set out below, by the employee without assigning any reason and by the employer only on grounds of redundancy. Notice of the termination of employment proposed either by the employer or by the employee under a contract of service for an indefinite time, shall be of in accordance with law.

In case of definite contracts, once the probationary period has elapsed, if the employer terminates a definite contract of employment before the expiration of the time definitely specified by such contract, the employer must pay to the employee a sum equal to half the wages that would be payable to the employee in respect of the remainder of the time specifically agreed upon. If an employee abandons his employment before the time definitely specified by the contract of service, must pay to the employer a sum equal to half the full wages he would have been entitled to had he continued his services.

Pregnancy, giving birth or breastfeeding during Probation

The Protection of Maternity (Employment) Regulations S.L. 452.91 provides certain provisions safeguarding employees who are pregnant, giving birth or breastfeeding during probation period.

If the employment of a pregnant employee is terminated during probation, the employer is obliged to give her the reasons in writing to justify that the dismissal is unrelated to the employee's condition. The reasons provided must prove a good and sufficient cause.

In the case of a pregnant employee or of an employee that has recently given birth or who is breastfeeding who is in her probationary period, if the probationary period has not been exhausted on the date when the pregnant employee is to start her maternity leave and/or special maternity leave, the probationary period shall be deemed to have been automatically suspended on the commencement of the maternity leave for the whole period of maternity leave.

Where the employer provides no reason for such termination of employment, or if the dismissed pregnant employee feels that the reason for dismissal provided by the employer was unfair and unjust, said employee has the legal right to file a complaint with the Industrial Tribunal within four months from the official date of the dismissal</p