Under § 622 subsection 3 BGB, an employer can give notice of dismissal during the probationary period (Kündigung in der Probezeit) with a shortened notice period of only two weeks, without having to state any particular reason. This is because general protection against dismissal under the Protection Against Dismissal Act (Kündigungsschutzgesetz, KSchG) only applies after a six-month qualifying period (§ 1 subsection 1 KSchG).
Nevertheless, employees are not left unprotected during the probationary period. Formal requirements, prohibitions of discrimination and special protection against dismissal, for example for pregnant employees, apply from the very beginning. Anyone who knows the basic rules can assess more quickly whether a dismissal is effective and whether legal action is worthwhile.
How long does the probationary period last and which notice period applies?
A probationary period (Probezeit) is not required by law, but it is agreed in most employment contracts. During an agreed probationary period of no more than six months, both employer and employee can terminate the employment relationship with two weeks' notice under § 622 subsection 3 BGB. In the case of fixed-term employment contracts, the probationary period must also be proportionate to the duration of the fixed term (§ 15 subsection 3 TzBfG).
Unlike the regular notice period of four weeks to the 15th or to the end of a calendar month (§ 622 subsection 1 BGB), notice during the probationary period does not have to coincide with a particular date. It can be received on any calendar day and ends exactly two weeks later.
An example: if the notice of dismissal is received on the 3rd of a month, the employment relationship ends on the 17th of the same month, unless otherwise agreed in the employment contract or collective agreement. Employment contracts can stipulate longer periods, collective agreements (Tarifverträge) also shorter ones, and these provisions then take precedence. What is decisive is that the notice is received no later than the last day of the probationary period; the employment relationship may also end only after that date.
Does the employer need a reason for dismissal?
During the probationary period, the employer is in principle not required to state a reason for dismissal (Kündigungsgrund). The Protection Against Dismissal Act (KSchG), with its requirements for dismissal on grounds relating to the person, conduct or operational reasons, only applies once the employment relationship has existed without interruption for more than six months (§ 1 subsection 1 KSchG).
This does not mean, however, that every dismissal is permissible. Dismissals that breach the prohibition of victimisation (Maßregelungsverbot) under § 612a BGB remain prohibited, for example because an employee has lawfully exercised his or her rights. Dismissals that breach the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) are equally impermissible, for instance on grounds of sex, ethnic origin or a disability (§ 7 AGG).
A dismissal that is contrary to public policy or to good faith under § 138 BGB or § 242 BGB is also invalid, even if the KSchG does not yet apply. Such cases are rare in practice, but not impossible.
Does protection against dismissal under the KSchG already apply during the probationary period?
Full protection against dismissal (Kündigungsschutz) under the KSchG requires two conditions: a qualifying period (Wartezeit) of six months in the same establishment or company (§ 1 subsection 1 KSchG) and a minimum establishment size of, as a rule, more than ten employees (§ 23 KSchG). If either of these conditions is not met, the employer can dismiss without meeting the strict requirements of social justification.
It is important to note that the qualifying period runs from the agreed legal start of the employment relationship and has nothing to do with the contractual probationary period. If a probationary period of less than six months has been agreed, the normal notice period applies again afterwards, but protection under the KSchG nevertheless only begins once the full six months have elapsed.
Special features in cases of pregnancy, severe disability and a works council
For severely disabled persons, special protection against dismissal under § 168 SGB IX, which requires the consent of the Integration Office (Integrationsamt), only applies after a period of employment of more than six months (§ 173 subsection 1 no. 1 SGB IX). In the first six months, the employer therefore does not need the consent of the Integration Office. However, even during this period, he must involve an existing representative body for severely disabled employees (Schwerbehindertenvertretung) before the dismissal, otherwise the dismissal is invalid (§ 178 subsection 2 SGB IX).
If a works council (Betriebsrat) has been established in the establishment, it must be consulted before every dismissal, including during the probationary period (§ 102 BetrVG). If the consultation does not take place, the dismissal is invalid for that reason alone, irrespective of whether the KSchG applies.
What form must the notice of dismissal take?
The start of the notice period depends on receipt (Zugang) of the notice of dismissal, not on the date of the letter. If the notice is handed over in person, receipt should, where possible, be confirmed in writing. From the employer's point of view, delivery by a messenger who has read the letter beforehand is the safest option. According to the case law of the Federal Labour Court (Bundesarbeitsgericht, judgment of 30.01.2025, 2 AZR 68/24), a registered letter with proof of posting into the letterbox (Einwurf-Einschreiben) is only sufficient if the delivery receipt can also be produced.
What can employees do in the event of dismissal during the probationary period?
It is advisable to have the notice of dismissal legally reviewed promptly. The following points in particular should be clarified:
- Has the written form requirement been met and can receipt be proven? - Does special protection against dismissal already apply, for example because of pregnancy? - Was an existing works council properly consulted? - Are there indications of discrimination under the AGG?