How long do trainees have a probationary period during their training – can it be extended or shortened?? What applies when apprentices get sick or pregnant during their probationary period? And what happens if you resign? Answers to the most important questions.
By Max Frehner
Does it fit, or does it not fit? During the probationary period at the beginning of the training, both sides have the right to terminate the cooperation without major legal or formal hurdles. – © pinepix – stock.adobe.com
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The probationary period in the apprenticeship is comparable with a mutual getting-to-know-you phase. During the probationary period, both partners – in this case the training company and the trainee – have the right to end the cooperation at any time and without major legal or formal hurdles. Specifically, this means: No reason has to be given for the termination and it takes effect immediately – without notice period.
1. What are the advantages of the probationary period?
Basically, the probationary period offers advantages for both sides. Employers can take advantage of a probationary period during the first few months get a more accurate picture of their apprentice, before they commit themselves more closely to it contractually. The trainer can check, for example, whether the trainee fits into the team, is reliable and whether he or she meets the basic professional requirements. For their part, trainees can use the time to find out whether the Job corresponds to one’s own ideas and how well it can be learned in the chosen company.
2. What is the difference between a trial period and a trial job??
In contrast to a trial period, during the probationary period there is Entitled to an apprenticeship allowance from day one. Finally, the apprentice then also performs a service for the employer. The situation is different with trial work: Here, the potential employee is only allowed to watch; value-added work is not permitted. Companies are therefore allowed to pay a maximum of one expense allowance to probationers, such as for travel expenses.
3. Do employers have to agree on a probationary period at all?
A probationary period of at least one month is required, as stipulated by law in Section 20 of the Vocational Training Act (BBiG). "the agreement of an even shorter probationary period is invalid, even if both parties agree to it", says Alexander von Chrzanowski, specialist attorney for labor law at the law firm Rodl& Partner.
In a "normal" Incidentally, a probationary period is not prescribed by law in the case of an employment relationship. In practice, this means that if a journeyman begins an employment relationship in his training company or another company after completing his apprenticeship, there is no obligation to agree a probationary period in the employment contract.
4. When does the probationary period in training begin?
The probationary period begins on the day specified in the training contract as the start of training. In most training relationships this 1. August or the 1. September. "The day on which the contract is signed does not play a role in the start of the probationary period.", explained by Chrzanowski.
5. How long is the probationary period in training?
The maximum probationary period for apprentices is according to § 20 BBiG four months, as a minimum, a one-month probationary period is prescribed – anything in between is possible. If the training contract provides for a probationary period that is outside this time frame, this specification is invalid. Which duration is agreed in the individual case can usually be found in the training contract. "If there is nothing there, the minimum duration of one month applies.", says von Chrzanowski.
6. Can the probationary period in training be extended?
Without further ado Probationary period cannot be extended beyond the four-month period prescribed by the Vocational Training Act. " The only exceptions are if the trainee falls ill for a longer period during the probationary period, or goes on maternity or parental leave.", says von Chrzanowski. Important here: The The interruption must be longer and must amount to at least one third of the total agreed probationary period. "The parties can then – even subsequently – effectively agree in the training contract that a corresponding interruption will result in the probationary period being extended by the duration of the interruption." This had the Federal Labor Court in 2016 in a corresponding legal case so decided (BAG, judgment of 9. June 2016, Az. 6 AZR 396/15). "If no such agreement is or was made, interruptions are irrelevant and the probationary period expires in favor of the trainee", says von Chrzanowski.
If none of the above reasons exist, the probationary period cannot be extended beyond the maximum probationary period of four months. What is possible, on the other hand, is to exhaust the probationary period. If, for example, only a two-month probationary period was agreed, then it is possible to extend this to four months, provided both parties agree to this. "If, for example, the training company says that it would give notice at the present time but can imagine granting the trainee another two-month probationary period, then this extension to a maximum of four months can be agreed in writing", declared by Chrzanowski.
7. Can the training company shorten the probationary period?
Since only a statutory probationary period of one month is prescribed, an agreed longer probationary period can be extended without any problems reduced to the minimum period of one month prescribed by the Vocational Training Act are. "Such a waiver by the training company of its own right of termination is also possible unilaterally, i.e. without the trainee’s consent", says von Chrzanowski. However, trainees would not have the right to shorten the probationary period. This also applies if the apprentice completed an internship at the company before the start of training has. "Education, with its own rights and obligations, is different from an internship", according to the specialist lawyer for labor law. The Federal Labor Court rejected a corresponding claim in 2015 (BAG, ruling dated 19. November 2015, Az. 6 AZR 844/14). The complaint was filed by a young man who was dismissed shortly before the end of his three-month probationary period. He wanted his internship completed before the start of training to count towards the probationary period.
8. Are trainees allowed to take vacation during their probationary period??
"There are no special regulations in the Vocational Training Act, so that the normal’ Vacation right the employee applies", says von Chrzanowski. This provides that entitlement to vacation only after a waiting period of six months exists. In practice, the rules of the Federal Leave Act mean that the training company does not have to grant its trainee leave in the first six months – but it is still possible voluntarily for. "But this is vacation law, it has nothing to do with the probationary period", explains the lawyer.
A Exception applies if the six months within a calendar year is no longer reached can be taken, i.e. whenever the training is started in the second half of the year. Example: A training relationship starts on 1. October. Since there are only three months left in the calendar year, the six-month "waiting period" may no longer be reached. In this case, the trainee is entitled to vacation for the period from October to the end of December from the first day. For an annual leave of 30 days, this would be 7.5 days. However, the six-month waiting period then continues in January. From January to the end of March, the trainee would accordingly have no legal right to be granted vacation days. He can therefore only take the 7.5 vacation days to which he is entitled for this period at a later date.
9. Does illness during the probationary period protect against dismissal?
"A ‘normal’ illness never prevents the issuance of a notice of termination during the probationary period – both in the employment and in the training relationship", says von Chrzanowski. A Exception would exist only for people with severe disabilities. "In this case, termination is only possible with the consent of the integration office", so the lawyer.
For all others, it applies that they can theoretically also be terminated without notice due to illness or accumulating sick days within the probationary period, without this having to be stated as a reason by the employer. Incidentally, the training company can also give notice of termination if the trainee takes currently on sick leave is located.
10. What applies if a trainee becomes pregnant during the probationary period??
"The legal consequence of a pregnancy during the probationary period is that employer only with the consent of the competent state authority a termination can pronounce", explains von Chrzanowski. The pregnancy does not necessarily result in an extension of the probationary period, unless a corresponding contractual agreement has been made (see question 6).
Since the protection against dismissal for expectant mothers comes into effect at the beginning of the pregnancy, the trainee can inform the trainer of her pregnancy without fearing dismissal. A However, there is no obligation to notify the pregnancy. "If the employer does not know about the pregnancy, he cannot fulfill his duty of care", gives von Chrzanowski to consider. In her own interest, it may therefore make sense for the expectant mother to inform the trainer of her pregnancy.
If a pregnant trainee who has not yet informed her trainer of this circumstance is dismissed during the probationary period, she will still be entitled to the after receipt of the notice still two weeks time. Within this period it must catch up the communication opposite the instructor. Within of three weeks the apprentice must in addition proceed against the dismissal before a conciliation committee or the labor court. "In order for the protection against termination to take effect in this case, the trainee must be able to prove that she was already pregnant when she received the notice of termination", explains by Chrzanowski.
If the person being terminated does not learn of her pregnancy until after the deadline has expired, she must notify the employer immediately after learning of this fact and file an action for protection against dismissal.
11. What notice period applies to trainees and the training company during the probationary period?
If nothing else is agreed in the training contract, both the training company and the trainee can terminate at any time and without notice within the probationary period. The termination takes effect immediately upon receipt of the notice of termination, The apprentice does not have to/is not allowed to work another day at the company.
"In principle, the parties are free to specify a longer notice period when giving notice of termination", says von Chrzanowski. The maximum length of the notice period is not regulated by law – it must, however, be reasonable .
12. What reasons can justify termination after the probationary period??
After the one to four-month probationary period has expired, the trainee can be Only extraordinary notice of termination be. "An extraordinary reason would be, for example, if the training objective can no longer be achieved, for example, because the trainee has too many days of absence from vocational school or has failed the examination too often", explains von Chrzanowski. Unexcused absences, theft or insults could also be grounds for extraordinary termination, whereby the requirements for the reason increase as the final examination approaches.
This restriction does not apply to trainees, they can terminate after the probationary period with a notice period of four weeks and by stating the reason for termination. No high requirements are placed on the reason for termination. It is sufficient if the trainee writes that he/she wants to give up the vocational training or wants to train in another profession.
If the trainee wishes to avoid the four-week notice period after the probationary period, he/she must either submit a Agree on a termination agreement with the training company or present an important reason. This could be the case, for example, if the training allowance was repeatedly paid late or not at all, says von Chrzanowski.
13. How do the training company or apprentice terminate correctly during the probationary period??
For termination during the probationary period to be effective, a few criteria must be met. First of all, it is important that the notice of termination is given to the training company/trainee delivered within the probationary period is. "It makes sense to hand over the notice of termination personally – preferably with witnesses – and to have the receipt acknowledged with date and signature, for example on a copy of the notice of termination", advises von Chrzanowski.
If this is not possible, the termination may also be in the mailbox of the training company/apprentice. "The notice of termination is deemed to have been delivered when this is usually emptied again", explained by Chrzanowski. If a trainee posts the letter of termination on Sundays or in the evening outside business hours, for example, it is generally not deemed to have been delivered until the following day.
Example: A training relationship was terminated on 1. August, a four-month probationary period has been agreed. The probationary period ends in this case on 30. November. Assuming the day falls on a Thursday and the trainee submits his notice of termination on the 30th day of the probationary period. November at 6 p.m. in the mailbox: "Then the notice of termination is not valid until November 1. December as delivered – and that is in this case outside the probationary period", says von Chrzanowski. A mistake that hurts training companies in particular. Because they can only terminate extraordinarily after the probationary period has expired. It is possible for trainees to terminate their employment with notice even after the end of the probationary period, giving a simple reason for doing so. (see question 12)
In addition to the time also decides the Form of termination about whether the termination of the training relationship is effective. "It is mandatory that the notice of termination be in writing", says von Chrzanowski. However, too high demands would not be made on the content of this letter. A short sentence such as "I hereby give notice as of (…)" or "The trainee [name] is hereby given notice of termination as of (. ) terminated" including signature is sufficient. Important: The dismissed person must be given the Original to go. The notice of termination may not be submitted as a copy, by fax, e-mail or otherwise digitally, but must be submitted on a paper signed by hand.
In the case of underage trainees, it should also be noted that the legal guardians have a right of co-determination and information have. This means that if an apprentice wishes to terminate his or her training, the parents must also sign the termination notice. The same applies if the notice of termination is given by the training company. The notice of termination must then be sent to at least one of the child’s parents. As a rule, the notice of termination is also deemed to have been received if it is posted in the jointly used house mailbox.
14. What happens to remaining vacation if notice is given during the probationary period??
"Vacation days not taken must be paid out by the training company", declared by Chrzanowski. In order to calculate the remaining vacation entitlement, the annual vacation must first be divided by twelve and the result then multiplied by the number of full months in which work was performed in the company.
Example: A trainee is entitled to 30 vacation days per year. After the start of training on 1. September is granted to him on 21. November within the probationary period without notice. The apprentice is entitled to 2.5 vacation days for both September and October. There is no vacation entitlement for November because the training relationship ended before the end of the month. Unless the vacation days have already been taken, the training company must pay its apprentice a total of five vacation days. If, on the other hand, more days of vacation have already been granted and taken, they cannot be reclaimed.
And what about Overtime? "If it is agreed in the training contract that overtime worked is to be paid, then it must be paid out upon termination.", says von Chrzanowski.
15. If the notice of termination is in the training certificate?
After termination within the probationary period, the apprentice has Entitlement to a training certificate. However, it must not state who has terminated the training relationship and for what reason the notice was given. Unless the apprentice has given notice himself and wants this information, something as proof for the following applications.
16. Are apprentices entitled to unemployment benefit I after termination during the probationary period??
A prerequisite for being able to receive unemployment benefit I is that have been in employment subject to social security contributions for at least twelve months in the previous 24 months was. "An apprentice who has completed his apprenticeship directly after leaving school does not meet this criterion", says von Chrzanowski. The case could be different if the trainee has already been employed before the start of the apprenticeship.
Example: An apprentice terminates his apprenticeship after ten months to start vocational training in another company. There he is terminated within the probationary period after two full months. In this case, the apprentice can apply for unemployment benefit if the termination was initiated by the employer. If the trainee has given notice of termination himself/herself and without good cause (see question 12), the employment agency can suspend payment of unemployment benefits for up to twelve weeks. If the requirements for unemployment benefit I are not met unemployment benefit II (Hartz IV) be requested.
17. May a probationary period be agreed again after the apprenticeship has been completed?
If a trainee is taken on as a permanent employee after his apprenticeship, the employer may Once again set a probationary period of up to six months in the employment contract. "Here is the beginning of another activity in which the parties can and should get to know each other once again", explained by Chrzanowski. There is no legal obligation for a new trial period. Generally speaking, a probationary period in an employment relationship, as opposed to an apprenticeship relationship, is not required by law.
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