Probationary periods in fixed-term contracts: no rigid 25 per cent limit

Probationary periods in fixed-term contracts

A one-year contract with a four-month probationary period. The Regional Labour Court of Berlin-Brandenburg did the maths: a quarter of twelve months is three. Four months was one too many for its liking. The Federal Labour Court (BAG) rejected that calculation in its judgment of 30 October 2025 (2 AZR 160/24): there is no standard figure of 25 per cent of the fixed term.

The statute requires that a probationary period in a fixed-term employment relationship be proportionate to the expected duration of the fixed term and to the nature of the work. It does not name a figure. That was precisely the gap the Regional Labour Court had filled with its rule of thumb. The Federal Labour Court fills it differently: how long the probationary period may be must be weighed in each individual case against those two criteria.

The case: four months' probation

The employee started on 22 August 2022 in a company's customer service department. The contract was for a fixed term of one year. A fixed-term contract can only be terminated by ordinary notice before it expires if that has been expressly agreed. That had been done here: the contract was to be terminable on the statutory notice periods. The first four months counted as a probationary period with a notice period of two weeks.

On 10 December 2022 she received notice of termination, by ordinary notice with effect from 28 December 2022. The employee brought a claim and argued in three stages. Four months' probation under a one-year contract was too long. Instead of two weeks, the statutory period of four weeks to the 15th or the end of the month therefore applied, so the employment relationship ended no earlier than 15 January 2023.

The employee went further still: with the probationary clause, the possibility of termination fell away altogether. And in any event the termination needed a reason that would hold up under the Protection Against Dismissal Act. This was because the qualifying period, that is the time until protection against dismissal begins, could only be as long as a permissible probationary period, here three months.

The court below: 25 per cent as a standard figure

The Regional Labour Court went some way with her. It considered the probationary period disproportionate and applied a standard figure of 25 per cent of the fixed term, so three months under a one-year contract. It saw no reasons to depart from that. The termination remained effective, but ended the employment relationship only with effect from 15 January 2023, that is on the statutory notice period. For the employer that meant 18 more days of employment than planned.

Both sides appealed. The employee still wanted the termination set aside entirely. The employer wanted the claim dismissed in full.

BAG: individual case instead of a rule of thumb

The employer prevailed. The Federal Labour Court dismissed the employee's appeal on points of law. On the employer's appeal it set aside the appellate judgment in part and dismissed the claim in its entirety. The termination was effective and ended the employment relationship with effect from 28 December 2022.

The reasoning: there is no standard figure of 25 per cent of the fixed term for a proportionate probationary period. A weighing-up is required in each individual case, and on the basis of the two criteria that also appear in the statute. These are the expected duration of the fixed term and the nature of the work, not a fixed percentage.

Why were four months acceptable here? The employer had drawn up a detailed induction plan: three phases with a total duration of 16 weeks, so just under four months. Only after that were staff expected to be productively deployable. Anyone still learning until then can hardly be conclusively assessed beforehand. In view of this plan, the court regarded the four-month probationary period as proportionate.

The qualifying period stays at six months

A second point in the decision is at least as important for employers. The qualifying period under the Protection Against Dismissal Act is six months. Only once the employment relationship has existed for more than six months without interruption does a termination require a socially justified reason. The employee had argued that an excessively long probationary period shortens this qualifying period to the permissible length of probation.

The Federal Labour Court saw no legal basis for this. Even a disproportionately long and therefore impermissible probationary period would not have shortened the qualifying period. Probationary period and qualifying period are two different things: the probationary period concerns the notice period, the qualifying period concerns protection against dismissal. An error in one has no effect on the other.

What companies should take from this

Three conclusions follow from the judgment for companies. First: there is no fixed upper limit expressed as a percentage. Anyone who has so far cautiously agreed three months' probation under a one-year contract may go longer if the nature of the work justifies it. The shortened notice period of two weeks applies for a maximum of six months in any event.

Second: the justification should be in place before a court asks for it. The Federal Labour Court relied on an induction plan that put a concrete figure on the time until productive deployability. Anyone agreeing a longer probationary period should be able to document why the induction takes that long: phases, content, weeks. The more concrete the plan, the easier the duration is to defend.

Third: the nature of the work matters. A customer service role with a three-phase induction justified four months. With a short fixed term or work involving no appreciable induction, a long probationary period is likely to be harder to justify. The risk of an overly long probationary period lies in the notice period: instead of two weeks, the Regional Labour Court applied the statutory period of four weeks. Protection against dismissal after six months, by contrast, does not begin any earlier.