|April 27, 2012|
Previously published on April 2012
The length of a trial period should be determined taking into account its aim: to allow the employer to assess the employee’s abilities and to terminate the employment contract easily if it is not satisfied with the employee’s performance. Two recent decisions of 11 January 2012 demonstrate how difficult it is to find the appropriate length.
The French Supreme Court decided that a trial period of one year, including renewal, was not reasonable. In this case, the employment contract provided a six months’ trial period which could be renewed once, in accordance with the applicable collective bargaining agreement (CBA). The employer terminated the trial period after more than 11 months. The French Supreme Court considered that the termination of the trial period should be viewed as an unfair dismissal. Since 2008, the law expressly sets the maximum length of the trial period and its renewal, but longer trial periods provided in CBAs, in force before the publication of the law, remain applicable. It appears that the French Supreme Court intends to control whether the length of the trial period is reasonable or not, even in cases where the employer has complied with the applicable CBA.
In another case, the French Supreme Court decided that the employer could not terminate a trial period after only two days of work; in such a short period, the employer could not have had sufficient time to assess the employee’s abilities.
Employers should be careful when enforcing a trial period even within the limit set out by law or by a CBA. It is also necessary to be careful not to terminate the trial period too shortly after the beginning of the employment, so that the employee has sufficient time to show his abilities.