Parties to an employment contract can stipulate a probation period of up to three months from the start of the employment relationship – or up to six months in the case of a collective agreement. The probation period is designed so the employer can get to know the expertise, skills and capabilities of the employee, and their work attitude, while the employee can experience the conditions and circumstances in the workplace. During the probation period, either party may terminate the employment quickly (with immediate effect), and for the employer this also means an easier and more cost-effective legal solution. When terminating employment during probation, the employer has to exercise care and diligence.
Terminating employment during probation: termination with immediate effect – without justification
According to the Hungarian Labour Code, employers may terminate employment relationships during probation periods in writing with immediate effect, and without having to justify this decision. Neither the prohibitions nor the restrictions on termination apply when terminating employment relationships in this manner. A unilateral legal statement by the employer terminating the employment takes effect when delivered, and the employment is terminated immediately. It follows that it becomes impossible by definition to grant leave when terminating employment during probation, and so this must be compensated financially. In contrast to terminations, or terminations with immediate effect requiring justification, there is no need and nor is it advisable to justify immediate terminations during probation periods; it suffices if the employer specifies that the employment relationship is being terminated during the probation period with immediate effect and without justification. Nevertheless, if the employer does justify its termination notice, this must be clear, true and justified in the event of an employment lawsuit, the burden of proof lies with the employer.
Terminating employment during probation – not an unrestricted legal tool
During all phases of a working relationship – and thus also when terminating employment during probation – employers are restricted in exercising their rights by the prohibition on abusing rights and by the equal treatment requirement. Abusing rights means, in particular, if this is directed at or results in impairing the legitimate interests of others, limiting opportunities to assert interests, harassment or repressing the freedom of expression. The actual reason for terminating the employment relationship may not contradict the legal principles outlined above, regardless whether the given case constitutes terminating employment during probation and the employer does not have to provide justification. So, if an employer terminates an employment relationship during probation with immediate effect and without justification because the individual is pregnant or unable to work because of illness for example, this can result in an unlawful termination of employment. Not only may the employee initiate a labour dispute, they may also turn to the Equal Treatment Authority because the employer terminating the employment during the probation period may constitute direct discrimination.
In these cases, the employer has to provide adequate proof that the reason for terminating the employment – in connection with the examples above – was not the employee’s pregnancy or incapacity to work owing to illness, but some other reason related to the employee’s skills or conduct. In this respect, during probation periods it is advisable to confront employees with their mistakes and record this in writing, issuing a verbal or written warning in justified cases. In cases where the employee is incapable of working for a significant part of the probation period (meaning the employer is not able to learn about or judge the employee’s work during the period), terminating the employment during the probation period is very risky from a legal perspective in light of the above.
Terminating employment during probation: serving notice during probation
Terminating an employment relationship during probation is only legal if the notice is served properly, which means the termination notice is given to the employee during the probation term. If posting the notice, you must make sure that the termination notice does not get posted on the last day of the probation period, the employee must receive it during the probation period.
On the basis of the above, terminating employment during probation is a simpler legal solution for the employer, but it is still worthwhile proceeding only after weighing up all the circumstances.
