24. Apr 17

BAG: Reduced notice period during probation only applies if employment contract clearly drafted

Employers ought to tread carefully when it comes to terminating an employment relationship during the probationary period, as a reduced notice period for dismissal only applies if the employment contract has been clearly drafted.

GRP Rainer Rechtsanwälte explains: If employer and employee conclude an employment contract, they typically also agree to a probationary period. Should this period last no longer than six months, it is then possible for either party to terminate the employment relationship, usually within a period of two weeks. If the employer stipulates a longer notice period in an additional clause within its pre-drafted employment contract, this may also apply to the probationary period if the contract is not clear and unambiguous. That was the verdict of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, in a recent ruling from March 23, 2017 (Az.: 6 AZR 705/15).

In the case in question, the parties had laid out as a blanket rule in the employer’s pre-drafted employment contract that the rights and obligation of the parties would be based on the framework collective agreement. This agreement provided for special notice periods during the probationary period. Moreover, a probationary period of six months was agreed to, while another part of the agreement stipulated an applicable notice period of six weeks leading up to the end of the month. This clause made no reference to the previous provisions. The employer terminated the employment relationship during the probationary period whilst observing a notice period of two weeks. The employee resisted this move, arguing that the employment relationship could only be terminated with a notice period of six weeks.

The BAG followed this line of reasoning, stating that the provisions of the employer’s pre-drafted employment contract were general terms and conditions to be interpreted in such a way as your average, non-legally trained employee would understand them. In this case, the contract was said to have been ambiguously worded. The Court held that due to the reference to the framework collective agreement and the agreement concerning a probationary period, it was not evident from the perspective of the employee that this would influence the notice period. The BAG went on to say that the contract was drafted in such a way that only the provision stipulating a six-week notice period was applicable.

Dismissals are among the most common causes of legal disputes in the workplace. To avoid lengthy legal disputes, employers ought to ensure that agreements are detailed and unambiguous. Lawyers who are experienced in the field of employment law can offer advice.

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