Termination of the employment contract during the trial period

An employment contract generally begins with a probationary period called a trial period (for permanent and limited contracts).

During this period, the 2 parties may rapidly terminate the employment contract without compensation.

The terminating party must respect a notice period which is dependent on the duration of the initial trial period stipulated in the employment contract (or by the collective agreement where applicable).

Who is concerned

The employer and the salaried worker (employee) may unilaterally terminate the contract during the trial period.

Prerequisites

The trial period and its duration must be stipulated in writing, at the latest when the employee takes up his post. By default, an employment contract is deemed definitive and only a procedure concerning a dismissal or resignation may terminate the contract. 

Before terminating an employment contract where the trial period is still in effect, several points must be considered:

  • the employment contract cannot be terminated during the first 2 weeks in the trial period without the other party's consent except where there is a case of dismissal for serious misconduct;
  • the notice period may not end after expiration of the trial period on pain of automatic conversion of the contract with a trial period into a definitive contract. In this case, termination of the contract will be deemed abusive;
  • the employer may not terminate the contract during the trial period if the salaried worker is on sick leave. In this case, the trial period is extended by the same time as the duration of the sick leave with a maximum of 1 month. At the end of this extension, the employer recovers the right to terminate the contract, even if the salaried worker is still on sick leave;
  • an employment contract with a trial period still in effect cannot be terminated between the period where the salaried worker submits a medical certificate attesting her pregnancy and the end of the job protection period (protection against dismissal). At the end of this period, the remaining trial period resumes and both parties recover the right to terminate the employment contract.

How to proceed

Termination procedure

Termination during the trial period must be done in writing and:

  • by registered mail with acknowledgement of receipt, or;
  • delivered by hand against acknowledgement of receipt.

Nor the employer nor the salaried worker need to indicate the reason for termination, even upon specific request by the other party unless it is a termination of employment with immediate effect.

Whatever the size of the company, a pre-dismissal interview is not required for a termination of the employment contract during the trial period.

Notice period

The notice period is dependent on the initial duration of the trial period.

Notice periods are the same for both parties.

A notice period may not be shorter than:

  • where the duration of the trial period is indicated in weeks: as many days as the trial period has weeks (e.g. 10 weeks is 10 days notice);
  • where the duration of the trial period is indicated in months: 4 days per month trial period without being shorter than 15 days and without exceeding 1 month.
Notice period to comply with depending on the trial period
Duration of the trial period as indicated in the employment contract Notice period to be observed
2 weeks termination not possible, except in the case of serious misconduct
3 weeks 3 days
4 weeks 4 days
2 months 15 days
3 months 15 days
4 months 16 days
5 months 20 days
6 months 24 days
7 months 28 days
8-12 months 1 month

Beginning and end of the notice period

The notice period runs from the day after the day on which notice was given, i.e. the day after mailing the letter or delivery by hand.

The notice period is counted in calendar days and not work days.

The notice period must end at the latest on the last day of the trial period initially stipulated in the employment contract. If the notice period ends after expiration of the trial period, the contract automatically becomes definitive and employment will therefore last for the full duration stipulated in said contract.

Example: an employment contract indicates commencement of the working relationship on 1 October and stipulates a 6 months trial period. The employer sends a registered mail on 26 October notifying the salaried worker about the termination of the employment contract during the trial period. The salaried worker receives the registered mail on 28 October.

The notice period starts on 27 October and ends on 19 November (24 days notice).

Termination for serious misconduct

In the case of serious misconduct by the salaried worker or the employer, it is possible to terminate the employment contract with immediate effect even during the first 2 weeks of the trial period.

The procedure for dismissal for serious misconduct must be observed, namely with regard to:

  • the reasons for the termination of the contract which must be in writing and present a precise and detailed description of the serious misconduct which justifies a termination with immediate effect;
  • the summons to the pre-dismissal interview in companies with more than 150 staff.

Who to contact

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