Permissibility of termination during probationary period in fixed-term employment relationships

The Federal Labour Court (BAG) has confirmed that there is no fixed benchmark – such as 25 % of the contract term – for determining a proportionate probationary period in a fixed-term employment relationship. Instead, proportionality must be assessed on a case-by-case basis, taking into account the expected duration of the fixed term and the nature of the role. In the case at hand, the court upheld a four-month probationary period in a one-year contract.

Background

The claimant was employed by the defendant employer as an Advisor I (Customer Service) from 22 August 2022 under a one-year fixed-term contract. The employment contract provided for a four-month probationary period with a two-week notice period during the probationary period and, thereafter, ordinary termination with the statutory notice periods.

By letter dated 10 December 2022, the employer terminated the employment relationship during the four-month probationary period, observing the two-week notice period. The employee challenged the termination in court. She argued that the probationary period was disproportionately long and therefore termination would only have been permissible at the earliest with effect from 15 January 2023, observing the ordinary four-week notice period. She further argued that the invalidity of the probationary period clause excluded ordinary termination altogether and that the termination required social justification because the waiting period under Section 1 para. 1 of the Protection Against Unfair Dismissal Act (KSchG) could extend only to a permissible proportionate probationary period, which she said should have been three months.

The Berlin-Brandenburg Regional Labour Court agreed that a four month probationary period in a one-year fixed-term contract was disproportionately long and therefore invalid. It applied a “standard value” of 25 % of the fixed term as a benchmark, concluding that a three-month probationary period would have been appropriate. Nevertheless, the Regional Labour Court considered ordinary termination to be possible and the termination to be valid, but only if the ordinary four-week notice period to 15 January 2023 was observed.

Decision

In its ruling of 30 October 2025 (2 AZR 160/24), currently available only as a press release, the Federal Labour Court dismissed the claim in full. It ruled that there is no standard value for determining the proportionality of a probationary period in a fixed-term employment relationship within the meaning of Section 15 para. 3 of the Part-Time and Fixed-Term Employment Act (TzBfG). Rather, the assessment must be made in each individual case, taking into account the expected duration of the fixed term and the nature of the work. On the facts, the employer demonstrated that productive deployment required intensive training in three phases totalling 16 weeks. The court therefore considered the agreed four-month probationary period proportionate. The court also confirmed – consistent with the view of the Regional Labour Court – that there is no linkage between a disproportionately long probationary period and the statutory waiting period under Section 1 para. 1 KSchG: The statutory waiting period of six months as one of the prerequisites for the application of general protection against dismissal is not shortened by a disproportionately long and therefore inadmissible probationary period. A social justification for the termination was therefore not required before the expiry of six months.

Practical implications

Section 15 para. 3 TzBfG was introduced only with effect from 1 August 2022, and has posed practical challenges. While the statutory wording does not prescribe a rigid ratio between the fixed term and the probationary period – and instead points to an individualised assessment – lower courts had begun to develop general benchmarks. The Federal Labour Court has now halted that trend. This clarification does not, however, simplify contract drafting in practice. In particular:

• The length of the probationary period must be determined, taking into account the training period, as well as the complexity, quality, and safety demands of the role in question, and must be reasonable in the circumstances.
• The training concept and its time components should be documented in writing when the contract is drafted.
• The probationary period clause and its duration should be set out in a stand-alone paragraph, separate from the clause on ordinary termination of the fixed-term employment relationship. This helps ensure that, even if the probationary period is found to be disproportionate and thus invalid, the parties’ agreement on ordinary termination remains intact. This is significant because, under Section 15 para. 4 TzBfG, a fixed-term employment relationship can only be ordinarily terminated if ordinary termination has been agreed. In this case, the invalid probationary period agreement only affects the length of the notice period, because the shortened probationary period notice period of two weeks does not apply; instead, the statutory minimum notice period of four weeks to the 15th or the end of the month (or the longer ordinary notice period agreed in the contract, if applicable) applies.