The purpose of the probationary period is for the employer and employee to get to know each other and determine if they are a good fit. It helps determine if the chemistry is good, if the employee is the right fit for the position, and if the employer, the position, and the work environment meet expectations.
Duration of the Probationary Period
The law only provides for a probationary period in indefinite employment contracts. In fixed-term employment contracts, a probationary period must be expressly agreed upon.
For indefinite employment contracts, the first month is considered the probationary period (Art. 335b CO). The parties can agree in writing to a longer probationary period. The maximum permissable duration is three months. The duration of the probationary period can be determined by the individual employment contract or collective employment agreement (Art. 335b para. 2 CO).
The parties can waive the probationary period or shorten it to zero. For evidentiary purposes a waiver of a probationary period should be agreed in writing.
For apprenticeship contracts, unless otherwise agreed, the probationary period is three months. The probationary period may not be shorter than one month or longer than three months (Art. 344a CO).
Extension of the Probationary Period
The probationary period can be agreed upon in writing for a maximum of three months (Art. 335b CO). If a probationary period of less than three months is agreed upon, an extension is possible. An extension of the probationary period beyond three months is not allowed. The imposition of a probationary period after a warning or reprimand is also not permissible.
If an employee takes vacation during the probationary period with the employer’s agreement, it does not extend the probationary period. To extend the probationary period by the duration of the vacation, this must be expressly agreed upon (in writing).
If the probationary period is effectively shortened due to the employee’s illness, accident, or the fulfillment of a non-voluntarily assumed duty, the probationary period is extended by the duration of the actual absence (Art. 335b CO).
For apprenticeship contracts, an extension of the probationary period can be agreed upon by the parties with the approval of the cantonal authority. The agreement must be made before the end of the probationary period (Art. 344a para. 4 CO).
Notice Period during the Probationary Period
The notice period during the probationary period is seven days (Art. 335b CO). This refers to calendar days. The employment can be terminated at any time with the observance of the notice period.
The notice period can be changed by written agreement in the individual employment contract, collective employment agreement, or collective labour agreement. Both longer and shorter notice periods are possible during the probationary period. It can also be agreed upon that specific termination dates must be observed (end of a week, beginning and middle of the month, etc.). The parties can also completely waive the notice period.
For apprenticeship contracts, the notice period during the probationary period is seven days (Art. 346 CO).
Termination during the Probationary Period
The termination is – otherwise agreement notwithstanding – not subject to a particular form. Written termination is recommended for evidentiary purposes.
The termination must be made during the probationary period for the short notice period to apply. Therefore, the termination can be issued on the last day of the probationary period.
Termination is a declaration of intent that requires receipt and must come into the recipient’s sphere of control to take effect. However, actual knowledge of the termination is not essential. If terminated on the last day of the probationary period, the termination must be handed over to the other party on the same day. Mailing the termination on the last day of the probationary period would not be sufficient.
No Protection against Dismissal during the Probationary Period
There is no protection against dismissal during the probationary period. The restrictions on dismissal due to illness, accidents, etc., only apply after the probationary period has expired (Art. 336c para. 1 CO). Therefore, the employer can terminate the employment during the probationary period even if the employee is sick, has had an accident, or is performing military service, etc.
Sick Pay during the Probationary Period
Illness, fulfillment of legal obligations
The employer’s obligation to continue paying wages only applies if the employment has lasted for more than three months or has been entered into for more than three months (Art. 324a CO).
Since the probationary period can last a maximum of three months and the employment contract never lasts more than three months during the probationary period, and due to the possibility of termination during the probationary period, there is no entitlement to sick pay.
If the employer has taken out a daily sickness benefit insurance, it may provide benefits during the probationary period after a certain waiting period. This depends on the insurance terms and conditions. The employment contract can include an agreement that the employer will continue to pay wages during the waiting period.
If the employee is sick during the probationary period or has to care for a sick child (fulfilling a legal obligation), there is no entitlement to sick pay unless this has been agreed upon in the employment contract. Entitlement to daily benefits from the sickness benefit insurance only exists if provided for in the insurance terms and conditions.
In the case of illness before starting employment, insurance will only provide daily benefits if a corresponding contract has been concluded. Employees can usually take out supplementary insurance with the employer’s sickness benefit insurance upon termination. If no such insurance has been taken out, no benefits will be provided.
Accident
During the probationary period, employees who have an accident are entitled to sick pay if they are compulsorily insured (Art. 324b CO).
Employees are compulsory insured against occupational and non-occupational accidents from the first day (Art. 1 Accident Insurance Act). art-time employees working less than eight hours per week are not compulsory insured against non-occupational accidents (Art. 13 Accident Insurance Ordinance).
In the event of an accident before starting employment, the former employer’s accident insurance may provide daily benefits if certain conditions are met and less than 31 days have passed since termination, or supplementary insurance has been taken out (see Art. 3 Accident Insurance Act).
New Probationary Period when Changing Positions
If an employee changes positions within the same employer’s organization, a new probationary period is only permissible in exceptional cases.
A new probationary period is considered permissible if the employee takes on completely different tasks and there is a justifiable need for the employer to assess the suitability and capabilities of the employee for the new position.
In the case of a promotion, a new probationary period is generally not permissible. Similarly, a probationary period is not allowed after completing an apprenticeship since the employer is already familiar with the employee and their work.
When a temporary worker transitions from the staffing agency to the user company, the agreement of a probationary period is permissible.
Right to a reference letter
In principle, even in the event of termination during the probationary period, the employee is entitled to a work certificate (Art. 330a CO). However, if the duration of employment is short, the employer may not be able to provide a comprehensive assessment of the employee’s performance and conduct. In such cases, it may be more appropriate to request a confirmation of employment.
Non-competition
A valid post-employment non-compete agreement can also be enforceable in the event of termination of the employment relationship during the probationary period.
If the employer terminates the employment without justified cause, the non-compete agreement becomes void (Art. 340c CO).
Generally, the non-compete agreement can only be enforceable if the employee resigns during the probationary period. The employee must have gained in-depth knowledge of the employer’s customer base, trade secrets, or manufacturing processes (see Art. 340 CO). If that is not the case, the employee is not bound by the non-compete agreement.
