The trial period
Redaction: Laure Mazurier
Legal resources > Social law > The trial period
The employment relationship often begins with a trial period: it allows each of the parties to assess the interest of the contract and, if necessary, to renounce it.
It is codified in articles 1221-19 et seq. Of the Labor Code .
Article 1221-20 defines it as follows: “The probationary period allows the employer to assess the employee's skills in his work, in particular with regard to his experience, and the employee to assess whether the positions held suit him. ”
The employment contract exists but the trial period allows both the employer and the employee to break unilaterally.
The existence of the trial period
The trial period is not presumed : it must be stipulated in a clause of the employment contract.
If necessary, it is also necessary to provide for the renewal of the trial period (only one renewal is possible). The possibility of carrying out a renewal must also be provided for by an extended branch agreement which must provide for the conditions of this renewal.
The clause must be relevant with regard to its purpose (it is the judge who carries out this control).
The typical case being that of an employee signing a permanent contract (CDI) at the end of a fixed-term contract (CDD) for the same functions: if a trial period is planned for the CDI, it is inoperative.
The length of the trial period
Article 1221-19 provides, for permanent contracts , time limits depending on the category of employee:
For workers and employees it is 2 months at most
For supervisors and technicians it is 3 months at most
For executives, it is 4 months at most.
Article 1221-24 provides for the duration of an internship to be taken into account if it is followed by recruitment: the duration of the internship is deducted from the trial period, without being able to exceed half.
The duration of the internship will be deducted in full from the trial period in the event of hiring for a job corresponding to the missions entrusted during the internship.
Regarding fixed-term contracts , article 1242-10 provides for a duration of one day at the rate of each work week, without being able to exceed two weeks in the case of a contract of 6 months at most, or of one month in the case of a contract of more than 6 months.
The termination of the trial period
The principle is that of the freedom to terminate the employment contract during this period .
No formalism is required, unlike dismissal, and this termination does not have to be justified (subject to control of abuse).
1) The limit on the freedom to terminate: respect for notice
If the employer wishes to terminate the contract during the trial period, he must respect a notice whose duration is proportional to that of the trial - article 1221-25:
24 hours within 8 days of presence
48 hours between 8 days and one month of presence
2 weeks between 1 and 3 months of presence
1 month beyond 3 months of presence
If this deadline is not respected, this gives the employee the right to compensatory indemnity.
If the employee wishes to terminate the contract during the trial period, he must also respect a notice: it is 48 hours (or 24 hours within 8 days of presence) - article 1221-26.
2) The exception to this freedom: the control of abuse
The abuse will be retained if the breach is not based on any objective reason with regard to the purpose of the test.
If it is characterized by the judge, it opens the right to compensation for the damage suffered by the employee.
Examples of abuse: breach unrelated to the employee's skills / period broken too quickly (without the employer having had time to assess the employee's skills) / contract terminated due to the company's economic difficulties /. ..