The probation period in labor law - Labor Law Plus

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The probation period is a fixed part of employment contracts in Switzerland. In most cases, a probation period is agreed upon, typically lasting three months. Very rarely is the probation period waived by the parties. Dispositive legal regulation According to Art. 335b para. 1 OR, the employment relationship can be terminated during the probation period with a notice period of seven days. This refers to calendar days and not working days. The termination can therefore take place on any day of the week, including a Sunday. The first month of the employment relationship is considered the probation period (Art. 335 para. 1 OR).

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“So consider who binds themselves.” This wisdom of life also applies to the probation period. Employment contracts according to Art. 319 et seq. of the Swiss Code of Obligations (OR) include the possibility for the parties to agree on a probation period. During the probation period, either party can terminate the employment relationship with a short notice period. Additionally, the blocking periods according to Art. 336c OR do not apply. However, the probation period is not without its pitfalls in labor law practice. And if employers and employees want to bind themselves immediately, there is also the possibility to mutually agree to waive the probation period. Let’s take a closer look at the topic of the probation period.

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This regulation applies whenever the parties have not agreed otherwise in the employment contract. Possibility of deviating agreements by the parties Art. 335b OR does not belong to the mandatory (Art. 361 OR) nor to the semi-mandatory provisions (Art. 362 OR) of the Code of Obligations. The parties can make deviating agreements through individual employment contracts, normal employment contracts (NAV), or collective labor agreements (GAV) (Art. 335b para. 2 OR).

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Part-time work There is a real boom in part-time work in Switzerland. The regulation of the probation period applies regardless of the employee's working hours. For part-time work, the probation period cannot be extended accordingly. Even if someone works with a workload of only 20%, the probation period must never exceed three months. Fixed-term employment contracts The Code of Obligations only provides for a legal probation period in the case of indefinite employment contracts. If nothing has been agreed regarding the probation period in an indefinite employment contract, the dispositive regulation of Art. 335b OR applies.

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For fixed-term employment contracts, the probation period can or must be expressly agreed upon between the employer and employee. If only a probation period is agreed upon without any details, the dispositive regulation of Art. 335b OR regarding duration and notice period applies. In the literature, there are discussions about whether there is a mandatory relationship between the duration of the probation period and the duration of the fixed-term employment. Theoretically, it is possible that the probation period corresponds to the entire fixed-term employment relationship or a substantial part of its duration. Some authors advocate for a minimum ratio of probation period to contract duration.