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Before being hired, an employee must often complete a trial period . This varies depending on the type of contract and professional category. It even happens that the employer renews this trial period. But can he put an end to it without explanations?
Yes, in principle
The employer can, in principle, end the trial period of his employee without having to justify a real and serious cause. The employer can warn the employee verbally or in writing, but it must be explicit, that is to say, he must clearly express his desire to end the trial period. No particular formalities are provided for, unless the collective agreement or the employment contract provides for a clause to this effect. Likewise, if the employer invokes a disciplinary reason, he will be required to respect the disciplinary procedure.
Is there a notice period?
Yes, the employer is required to respect a notice period when ending a trial period. If he does not do so, he exposes himself to procedural irregularity.
The notice period varies:
– in the event of termination at the initiative of the employer, the employee benefits from a notice period of 24 hours if the trial period is less than 8 days;
– the employee benefits from a notice period of 48 hours if the trial period is longer than 8 days;
– the employee benefits from a notice period of 1 month after 3 months of trial period.
If the collective agreement or employment contract provides for longer notice periods, the employer must respect them.
What should I be paid?
Termination of the trial period gives the right to payment of the last current salary, compensatory compensation for paid leave for employees whose duration of presence is greater than 8 days, a possible annual bonus calculated in proportion to the time spent in the company (for example , a thirteenth month bonus), and possible compensation calculated according to the damage suffered if the notice period has the effect of extending the contractual duration of work beyond the end of the period of trial.
Can the breakup be abusive?
The trial period does not escape all the rules of labor law, and must therefore not take place in abusive conditions. There will be abuse when the employer shows reprehensible levity (that is to say when the decision is taken in an inconsiderate manner despite the serious consequences that it may entail), or haste in breaking the period test. This is particularly the case when the employer ends an employee’s trial period after 8 days even though the latter has benefited from an adaptation course to familiarize themselves with the company’s techniques. There is also an abuse of rights when the trial period is diverted from its purpose by being, for example, used to fill a temporary position while awaiting the arrival of the one for whom it was intended.
Is there any recourse in case of abuse?
Yes, we can challenge the termination of the trial period before the industrial tribunal if we consider it to be abusive or invalid. The burden of proof lies with the employee. If the judges consider that the termination is unfair, the employee can claim damages calculated according to the damage suffered. If the judges consider that the termination of the trial period is void due to a discriminatory reason, the employee is entitled to payment of damages, but also to reinstate his position. If the reinstatement occurs when the trial period ends, the hiring will be definitive and the employer must respect the rules of dismissal if he wants to terminate the employment contract.
DAMY Law Firm , Nice, End of trial period, Updated 2022