Almost all jobs in Spain include a probationary period. From a legal standpoint, we can analyze this concept as follows: It is an agreement established at the outset in the employment contract.
Whether or not to agree to a probationary period depends on the wishes of the parties involved, namely the employee and the company. It may also be the case that, due to prior employment, a probationary period is prohibited.
If the contract is for a term of less than 6 months, the probationary period may not exceed 30 days, unless otherwise provided in the collective bargaining agreement.
A probationary period may be included in an employment contract only by mutual agreement between the employee and the employer. Otherwise, it will be deemed not to exist, as stated in Supreme Court ruling 5/10/01, appeal 4438/00.
In simpler terms, the probationary period is a temporary period during which both the employer and the employee may terminate the employment relationship without prior notice and without having to justify their decision.
This allows the employee, during the probationary period, to assess whether the established working conditions are acceptable. On the other hand, the employer has the right to evaluate the new hire’s skills and productivity.
How and when should the trial period be conducted?
As we explained earlier, this is a provision that is agreed upon at the start of the employment relationship. Therefore, any probationary period agreed upon at any other time will be null and void.
This is stated by the High Court of Justice of Madrid in its ruling of April 3, 2002, numbered 145/02.
However, there is an exception to this rule. The ruling does not apply if only 24 hours have elapsed between the start of service provision and the signing of the contract.
It should also be noted that a trial period agreed upon 72 hours after the start of the employment relationship will be considered null and void.
However, for a trial period to be valid, it must be expressly negotiated and set forth in writing.
Can an employee on sick leave be fired during the probationary period?
Essentially, Article 14.3 of the Employee Statute stipulates that temporary disability applies only under certain circumstances.
For example, risks associated with pregnancy or breastfeeding, birth or adoption, being a victim of gender-based violence, or any other situation that jeopardizes the employee’s safety during the probationary period.
These are situations that interrupt the calculation of the probationary period, provided there is an agreement between the parties involved.
In other words, if you are on sick leave during your probationary period, that period will be suspended. It resumes once you return to work.
However, this does not mean that your employer cannot fire you. Even though you are on sick leave, you are still in your probationary period, so your employer can fire you without prior notice or justification, as provided by law.
This constitutes established case law in Spain, as determined by the Supreme Court. This is evident from the ruling of December 12, 2008, which states the following:
The agreement to extend the initial probationary period serves as a guarantee for the parties involved. It states that the probationary period may be extended indefinitely, beyond the legally established limit.
But that does not mean that the employer’s right to terminate the contract is nullified by that interruption.
Therefore, when such a withdrawal occurs during the period of work interruption, it is considered that the termination effects, which are specific to the employer, do not amount to an unjustified dismissal as understood in the opposing ruling.
Therefore, it is not considered an unfair dismissal or discriminatory if the case falls under this provision.
