Determining the appropriate length of the probationary period is a recurring issue in our labor law practice. A recent ruling by the Federal Labor Court (BAG) (Decision of Oct. 30, 2025 – 2 AZR 160/24) provides greater clarity on this matter, while also placing greater responsibility on employers when drafting employment contracts.
Federal Labor Court (BAG): Proportional Determination of the Probationary Period in Fixed-Term Employment Relationships
The Case
The plaintiff (employee) was employed on a fixed-term basis for one year, starting on August 22, 2022, as an “Advisor I, Customer Service” as part of a specific project. Pursuant to the employment contract, the parties had agreed to a four-month probationary period during which the employment relationship could be terminated with two weeks’ notice. The duties specified in the employment contract required extensive training for the plaintiff, which was provided by the defendant as part of a 16-week training and orientation phase.
In a letter dated December 9, 2022, the defendant (employer) terminated the employment relationship during the probationary period, giving two weeks’ notice, effective December 28, 2022. The plaintiff challenged this termination during the probationary period by filing an action for protection against wrongful termination, arguing that the four-month probationary period was disproportionately long for an employment relationship limited to one year. Contrary to the provision in Section 15(3) of the Part-Time and Fixed-Term Employment Act (TzBfG), the agreed-upon probationary period was not reasonably proportionate to the duration of the fixed-term contract. Rather, in the plaintiff’s view, the probationary period should have lasted no more than three months. Furthermore, the plaintiff contended that the waiting period under the protection against dismissal provisions pursuant to Section 1 of the Protection Against Dismissal Act (KSchG) ran concurrently with the probationary period and that the employer was therefore required to provide a formal reason for termination (operational, behavioral, or personal).
Both the Labor Court and the Regional Labor Court (LAG) dismissed the complaint for the most part (with a slightly different notice period).
The decision of the Federal Labor Court (BAG, judgment of Oct. 30, 2025 – 2 AZR 160/24)
The plaintiff’s appeal was unsuccessful before the Federal Labor Court.
The standard for determining the reasonable length of a probationary period in a fixed-term employment relationship is the provision in Section 15(3) of the TzBfG. Accordingly, a probationary period agreed upon for a fixed-term employment relationship must be proportionate to the expected duration of the fixed term and the nature of the work.
The Federal Labor Court (BAG) has determined that there is no fixed standard for calculating the probationary period in fixed-term employment relationships (e.g., 25% of the term of the fixed-term contract). Neither national law nor the European Working Conditions Directive contains provisions regarding the specific duration of a probationary period in fixed-term employment relationships. It can therefore be assumed that the legislature deliberately refrained from setting numerical limits and that a reasonable probationary period should be determined by taking into account the duration of the fixed-term contract, the nature of the work, and the circumstances of the individual case.
According to the Federal Labor Court (BAG), a four-month probationary period is not objectionable in the context of a one-year fixed-term contract. In the case underlying the decision, this applies in particular in light of the plaintiff’s 16-week training and orientation phase. In any event, the nature of the work was so complex that several months of on-the-job training were necessary, and only after this period could the employer realistically assess whether the probationary period had been successfully completed.
According to the Federal Labor Court (BAG), it must therefore also be taken into account that, from the employer’s perspective, the probationary period must be of sufficient duration to realistically assess whether the employee can fulfill the job requirements in terms of performance, reliability, and cooperation with supervisors and team members. From this perspective as well, a four-month probationary period for a one-year fixed-term employment contract is not objectionable.
The Federal Labor Court (BAG) rejected the plaintiff’s argument that the waiting period under the law on protection against dismissal, pursuant to § 1 KSchG, runs for a duration analogous to that of the probationary period. The legislature deliberately linked the acquisition of general protection against dismissal to the six-month uninterrupted legal existence of the employment relationship and expressly stated this in the wording of § 1 KSchG. Shortening the waiting period under the protection against dismissal law in the case of a shorter probationary period is not warranted, as the waiting period and the probationary period are two distinct legal concepts.
Practical note
When drafting contracts for fixed-term employment relationships, care must therefore be taken to ensure that the probationary period is set at a reasonable length , taking into account the total duration of the fixed-term contract, the complexity of the work performed, and the circumstances of the individual case. There is no fixed rule of thumb. Rather, the duration and nature of the fixed-term employment relationship must be taken into account. For tasks that are more complex in nature, a longer probationary period will be considered proportionate than for simple tasks that employees can learn within a few days.
Agreeing to a probationary period that is too long (maximum 6 months, § 622(3) BGB) relative to the duration of the fixed-term contract may result in the employment relationship being terminated during the probationary period without a formal reason for termination, but subject to a notice period based on the contractually agreed or statutory (minimum) notice period for periods after the probationary period has expired.
Our Conclusion
The decision increases flexibility, but at the same time raises the bar for careful and well-reasoned contract drafting
Our employment law team would be happy to assist you in drafting your employment contracts in a legally sound manner.