How to terminate employment during the probationary period without the risk of litigation

The Concept of the Probationary Period in Czech Labour Law

The probationary period is a specific instrument at the beginning of an employment relationship. The purpose of the probationary period is not only to test the employee's abilities but also for both parties of the employment relationship to get to know each other. The Labour Code governs the probationary period primarily in Section 35, which sets out its basic parameters.

This legal instrument aims to allow the employee and the employer to assess whether the agreed employment relationship meets their expectations. If both parties find that the employment relationship does not meet their expectations, they can simply terminate it without unnecessary formalities.

Legal Framework and Basic Conditions for Arranging a Probationary Period

One of the most frequently violated requirements is the necessity of a written agreement for the probationary period. The Labour Code explicitly states that the probationary period must be agreed upon in writing and no later than the day the employment relationship begins.

If the probationary period were agreed upon only orally, such an agreement is invalid. Many employers underestimate this obligation, although the legal reality is unforgiving. If a written record is not part of the employment contract signed no later than the start date, the probationary period has not legally been established.

The reason for the written form requirement is legal certainty. Only a written form allows both parties to clearly define the duration of the probationary period and the conditions for its termination. The second critical aspect is the timeliness of the agreement. The probationary period cannot be agreed upon retroactively. It must be agreed upon no later than the day the employment relationship begins.

Length of the Probationary Period and Its Limits

The maximum length of the probationary period is a key parameter. Under current legislation, the maximum length of the probationary period is:

• 4 consecutive months from the date of commencement of the employment relationship for regular employees.

• 8 months for managerial employees.

• For a fixed-term employment relationship, the probationary period may not exceed half of the agreed duration of the employment.

If a longer probationary period is agreed upon, the agreement is invalid in the part exceeding the statutory limit.

An important aspect of the legislation is the possibility of subsequently extending the probationary period by written agreement of the parties, but the total length must not exceed the maximum statutory limits.

Statutory Extension of the Probationary Period

In addition to contractual extension, the Labour Code provides for an automatic extension of the probationary period due to obstacles on the part of the employee.

If an employee is sick for a period of ten working days, the probationary period is extended by these ten working days.

It is necessary to correctly record all full-day absences (sickness, leave, other obstacles), as these automatically postpone the end of the probationary period.

Process and Rules for Terminating Employment During the Probationary Period

Section 66 of the Labour Code allows for the termination of employment during the probationary period for any reason or for no reason at all. Both parties—the employer and the employee—have this right.

From the employer's perspective, this means that during the probationary period, they do not have to deal with the complex procedure that the Labour Code requires for a notice of termination.

Written Form Requirement

Termination of employment during the probationary period requires a written form; otherwise, it is disregarded. This means that an oral termination is legally null and void.

A formal written document that clearly expresses the will to terminate the employment during the probationary period is necessary.

The content of the termination notice should include the identification of the parties, a reference to the employment relationship, an explicit statement of termination, and the signature of an authorized person.

Although the employment relationship ends on the day of delivery, unless a later date is specified, it is advisable for practical reasons to also state a specific termination date.

Effective Moment of Termination

The employment relationship ends on the day the termination notice is delivered to the other party, unless a later date is specified in it. The termination cannot be made retroactively.

The safest method is to hand the document to the employee in person at the workplace and have them sign an acknowledgement of receipt on a copy of the document.

Another option is delivery to a data box or via postal services.

Email communication is still risky in terms of proving delivery in labour law unless it is accompanied by a recognized electronic signature.

Restrictions on the Right to Terminate Employment During the Probationary Period

The Labour Code contains one fundamental restriction: An employer may not terminate an employment relationship during the probationary period within the first 14 calendar days of a temporary incapacity for work.

In practice, this means that if an employee falls ill, they are protected from termination of employment by the employer for the first two weeks of their illness.

Protection Against Discrimination Even During the Probationary Period

Although employment can be terminated without stating a reason, the reason must not be discriminatory. Case law confirms that the prohibition of discrimination also applies during the probationary period.

In the event of a dispute, the employer bears the burden of proof if the employee presents facts suggesting discrimination.

Protection of Pregnant Employees and Parents

Terminating the employment of a pregnant employee during the probationary period is a sensitive topic. While dismissal of a pregnant employee by notice is generally prohibited, termination during the probationary period is possible.

However, this termination must not be motivated by pregnancy, maternity, or gender. If an employer were to terminate the employment for this reason, it would constitute prohibited discrimination.

Practical Mistakes and Risks

The most common risk is the absence of a written agreement directly in the employment contract no later than the start date. If the employer relies on an oral agreement, the probationary period does not exist.

Another mistake is agreeing to a probationary period longer than permitted by law. In such a case, the probationary period is valid only up to the statutory maximum; the rest of the agreement is invalid.

Mistakes in the Termination Process

A critical mistake is delivery by email without a recognized electronic signature or without the employee's consent to this method of delivery. A court may find such delivery to be ineffective.

Another mistake is termination during the protective period of the first 14 days of sickness. Employers often forget that the employee is protected during these days, even if they are in a probationary period.

Legal Situation After the End of the Probationary Period

If the probationary period expires and the employment relationship has not been terminated, it continues as a standard employment relationship. From this moment on, the employer can no longer use the simplified procedure under Section 66 of the Labour Code.

Legal Consequences of an Invalid Termination

If the termination is invalid and the employee announces that they insist on continued employment, the employment relationship continues. The employer is obliged to pay wage compensation from the date of the announcement until the valid termination of the employment relationship.

Protective Periods and Special Situations During the Probationary Period

An employer must not terminate an employment relationship during the probationary period due to pregnancy. If they do so without an objective reason, they face the risk of a lawsuit for invalid termination on grounds of discrimination.

Protection of Employees with Disabilities

Similar to pregnancy, the prohibition of discrimination on the grounds of disability applies. Termination of employment solely on the grounds of a health condition can be considered discriminatory.

Comprehensive Overview of the Procedure for Safe Termination of Employment

1. Verify the existence of the probationary period and check that it was agreed upon in writing and in a timely manner.

2. Verify the duration and check that the probationary period has not yet expired (beware of extensions due to obstacles to work).

3. Verify the protective period and ensure that the employee is not within the first 14 days of incapacity for work.

4. Rule out discrimination and ensure that the reason for termination is not a prohibited discriminatory ground.

5. Prepare a written "Termination of Employment During the Probationary Period" with clear identification and a signature.

6. Deliver the document in a provable manner (in person against a signature or via a data box).

Final Summary

Termination of employment during the probationary period is a flexible tool, but it requires strict adherence to formal requirements. A written form, timely delivery, and respect for the protective period during sickness are the absolute foundation.

Underestimating these rules or hidden discrimination can lead to the invalidity of the termination and the obligation to pay back wages for the entire duration of the dispute.

The most common mistakes are the absence of a written form, delivery by plain email, and failure to respect the prohibition of termination in the first 14 days of sickness. If you are unsure about the procedure, it is always cheaper to consult the situation in advance.

The lawyers at the Prague-based law firm ARROWS specialize in labour law and can help you set up template documentation or resolve a specific dispute.