LABOR
Irene Santiago Fontáns
We bring up the topic of the probation period because we believe that, in light of the changes and restrictions implemented by the latest labor reform regarding temporary hiring, the probation period has gained greater importance in labor relations. In this regard, there has been a significant increase in contract terminations during this period, which has led the Labor Inspection to launch a campaign to monitor the termination of employment contracts during the probation period.
Article 14 of the Workers’ Statute establishes the possibility for the parties to agree on a probation period in the employment contract, during which they can assess the work to be performed and the suitability of their relationship. For the company, in particular, this period allows them to evaluate the employee’s skills and how well they fit into the company.
The probation period is characterized by the option for both the company and the employee to terminate the employment contract without prior notice, without needing to justify the reason for termination, and without either party being entitled to compensation.
However, the use of this power by companies has become increasingly “risky,” especially since the enactment of Law 15/2022 of July 12, which aims at equality of treatment and non-discrimination. This law expands the grounds for discrimination and declares void any employer actions that are deemed discriminatory.
With regard to the probation period, the Workers’ Statute only considers termination during this period at the company’s initiative to be objectively null if the employee is pregnant or on maternity leave.
On the other hand, termination based on any form of discrimination prohibited by the Constitution or law is only contemplated in the regulation of dismissal, not in terminations for failing to pass the probation period. Therefore, based on the principle of legal specificity, we could interpret that these grounds for nullity should not apply during the probation period.
This argument is reinforced by the fact that, following the approval of Law 15/2022 for equality of treatment and non-discrimination, the legislature expanded the grounds for nullity in the regulation of dismissal but did not choose to modify the article concerning the probation period.
Despite this, case law has been applying the grounds for nullity found in dismissals to cases where terminations for failing to pass the probation period involved discriminatory reasons. Recent case law (such as the judgment of the Galician High Court of Justice 410/2024 of January 24), following this line, has applied the expanded discriminatory grounds introduced by Law 15/2022 to these types of terminations.
In this sense, the courts argue that the fact that termination during the probation period is not a causal dismissal based on specified reasons, but rather a non-motivated decision, does not exclude the illegality of a discriminatory resolution. In other words, the absence of the need to justify the reason for termination does not imply that any reason is valid; the termination cannot be based on a violation of fundamental rights.
It is important to note that when a worker alleges a violation of fundamental rights, the burden of proof falls on the employer, who must demonstrate that their action was not linked to the alleged violation of fundamental rights. If the employer is unable to prove this, the measure will be declared null, and the employer must reinstate the worker, paying them the salary they would have received from the time of termination. The employee may also claim additional compensation for the harm caused.
As a result, in practice, we may find ourselves needing to provide detailed justification for the reasons behind termination during the probation period, particularly in cases where there may be even a weak indication of a violation of fundamental rights. This is to avoid having the termination declared null due to an inability to justify the aforementioned disconnection.
It is true that with this justification, the essence of the probation period—its lack of required motivation—becomes distorted, but we would ensure the company’s ability to defend itself. The company could rely on the reasons stated in the termination communication to disconnect the termination from any alleged violation of fundamental rights. Better safe than sorry.
