Member Article

The primary purpose of the trial period is to assess whether the employee meets the employer’s reasonable performance expectations. Conversely, it gives the employee a chance to determine if the job aligns with their needs and preferences, benefiting from a shorter notice period during this phase. Once the trial period is over, the employee automatically gains full job protection.

As of July 1, 2024, amendments to Section 15-6 of the Working Environment Act, which govern trial periods, have come into effect. This newsletter outlines the new legal provisions, which: (i) establish a maximum duration for trial periods for temporary employment, and (ii) clarify the conditions under which a new trial period can be agreed upon for a position within the same company. Additionally, we offer practical tips for utilizing trial periods.

Maximum trial period for temporary employment
Until July 1, 2024, there was a statutory maximum trial period of up to 6 months regardless of the type of employment relationship. However, Section 15-6 (3) of the Working Environment Act has now been amended to include an important provision concerning temporary employment: «For a temporary appointment, the trial period may not exceed half the duration of the employment relationship.»

The general rule allowing a trial period of up to 6 months remains unchanged. However, the new amendment introduces an exception for temporary employment relationships lasting less than 12 months. This means that if an employer employs an employee on a temporary basis for a period of 6 months, the trial period can be agreed upon for a maximum of 3 months.

The possibility to extend the trial period due to absences caused by the employees themselves still applies, regardless of whether the employment relationship is permanent or temporary. This is now specified in the final sentence of Section 15-6 (3) of the Working Environment Act.

Possibility of agreeing on a new trial period?
Section 15-6 of the Working Environment Act has been amended with a new fifth paragraph:

“A new trial period cannot be agreed if the employee shall continue in the same post or in a post that is essentially the same post the employee has had in the same undertaking. For a permanent appointment, a new trial period may nevertheless be agreed if the employee’s previous length of consecutive employment and new trial period do not collectively exceed six months.”

The new provision establishes that it is not allowed to agree on a new trial period when the employee continues in the same or a similar position within the same company. This applies regardless of whether the employee was previously employed on a permanent or temporary basis, or whether the new position is permanent or temporary.

This newly added provision does not represent a total change in the existing law. The Supreme Court’s appeals committee already stated in Rt. 1996 p. 1026 that it was clear that «a new trial period cannot be agreed upon for permanent employment in the same position or in the same company if it is substantially similar to the position the employee has previously held as a temporary worker.» Furthermore, the Supreme Court’s appeals committee noted in Rt. 1997 p. 560 regarding the trial period provisions of the old Working Environment Act that a new trial period can be agreed upon if it concerns a «substantially different position«, but the employee must be able to return to their previous position. The background for this statement was the employee’s need for ordinary job protection, and that such protection with its accompanying rights should not be «put at risk through an agreement on a trial period in another position within the company«.

One instance where an employer should be able to safely agree on a new trial period is when the employee themselves applies for a new position within the same company, and the new position is significantly different from the previous one. An example from the Supreme Court shows that the difference between a position in the company’s packaging department and a position as a telemarketer in the same company was significant enough to justify a new trial period.

It is now also established in the Working Environment Act that for permanent employment, it is possible to agree on a new trial period if the total trial period, including previous employment, does not exceed six months. In practice, this will apply to employees who move from a temporary position to a permanent but similar position. For example, if an employee was temporarily employed for 3 months and then moves to a permanent similar position, a trial period of up to 3 months can be agreed upon.

Advice for employers:

• Include a trial period clause in the employment contract that allows for extending the trial period in case of employee-caused absences.
• Set the trial period to the maximum allowed duration.
• Extend the trial period for employee-caused absences, either via email or another written form.
• Provide necessary training and courses.
• Consider whether a mentorship program would be beneficial.
• Conduct and document follow-up meetings with the employee.
• Collaborate with the employee and allow them to provide input regarding their own training and any necessary measures to succeed in their role.

Our assistance:
We have extensive experience with issues that may arise during an employee’s trial period. Please feel free to contact us if you need any assistance.

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