The purpose of a probation clause in an employment contract is to check whether the parties are actually a good fit for each other and meet each other's expectations. If not, both employer and employee are authorised to terminate the employment contract immediately within this probationary period. This prevents them from being tied to each other for a longer period of time and having obligations towards each other.
Less known is the possibility of terminating the employment contract even before the probationary period has started. There are some caveats to this. For instance, the notice must be given verbally or in writing. Although, in principle, the employer does not have to mention a reason for termination. However, if the employee asks for the reason for the early probationary dismissal, the employer has to give it in writing.
In addition, the termination must not constitute an unlawful act, the termination must not violate the requirements of good employment practice and there must be no abuse of power. Examples include the early termination of an employment contract because the future employee is pregnant. Or early termination by the employer after an extensive job application procedure, including an employment interview, where the employer is aware of the employee's major interests.
In times like these, you as an employer may be forced to proceed with an early probationary dismissal. In principle, such a termination is legally valid. However, there is a chance, also given the upcoming government support measures, that you may be liable for damages.
If a premature probationary dismissal is legally valid, the employer may be liable for damages. The reason for the termination plays a big role in this. If the reason for the dismissal is entirely within the sphere of the employer, the employer may be liable for damages. This may be the case, for example, if there is a termination based on discrimination or business economic reasons, for example.
Are you wondering whether termination before the start of the employment contract is possible in connection with the corona crisis and would you like to spar about this? If so, you can always contact one of our employment law specialists.