Employment Law2026-10-22

Dismissal During the Probationary Period: Two Weeks' Notice, but Not Without Rules

In the first six months, you as an employer can dismiss an employee on two weeks' notice and without giving a reason. Even so, probationary dismissals go wrong — over receipt, over the works council, over special protection against dismissal. Here is what applies, and by when you must decide at the latest.

The new employee is not working out. The probationary period exists for exactly this purpose, and during this time you as an employer can give notice on a short period and without giving reasons. The law makes it easy for you, but not open-ended. The mistakes I see in probationary dismissals are rarely mistakes about the grounds; they are mistakes in the calendar, in the service of the notice, in consulting the works council, or in overlooked special protection against dismissal.

In brief

During an agreed probationary period of no more than six months, the notice period under section 622(3) of the German Civil Code (BGB) is two weeks, ending on any day. In the first six months, the Protection Against Dismissal Act (KSchG) also does not apply, because the qualifying period under section 1(1) KSchG is still running; you do not need a socially justified reason. These are two separate things: the probationary period is something you have to agree, whereas the qualifying period runs by operation of law. What matters is that the notice reaches the employee no later than the last day of the six months. Beyond that, the following apply: the requirement of written form (section 623 BGB), consultation of the works council (section 102 of the Works Constitution Act, BetrVG), the prohibition of discrimination (section 7 of the General Equal Treatment Act, AGG), the prohibition of reprisals (section 612a BGB), and the special protection against dismissal that in part takes effect from the very first day.

What applies

Probationary period and qualifying period. Section 622(3) BGB permits the two-week period only “during an agreed probationary period, for a maximum of six months”. If the employment contract contains no probationary period, the basic period under section 622(1) BGB applies even in the first month: four weeks to the 15th or to the end of the month. A collective agreement may provide otherwise (section 622(4) BGB). In the case of a fixed-term contract, the probationary period must, under section 15(3) of the Part-Time and Fixed-Term Employment Act (TzBfG), be proportionate to the duration of the fixed term and the nature of the work; the courts do not regard a six-month probationary period in a one-year contract as reasonable. Independently of all this, the qualifying period under section 1(1) KSchG runs: only once the employment relationship has existed without interruption for longer than six months must a dismissal be socially justified. You cannot extend these six months, not even with the employee’s consent.

The freedom and its limits. During the qualifying period you are free in your decision whether to dismiss. You may give notice because you have doubts about the employee’s suitability, because the chemistry is wrong, or because your order situation has changed. The limit is drawn by section 242 BGB: a qualifying-period dismissal is contrary to good faith only if it rests on arbitrary or extraneous motives; any broadly plausible reason suffices, and it is the employee who must set out the circumstances that suggest bad faith. Extraneous grounds would include, for example, a dismissal because the employee has submitted a sick note or has chased up their wages (section 612a BGB), or one linked to a characteristic listed in section 1 AGG; such a dismissal is void under section 134 BGB in conjunction with section 7 AGG and triggers compensation under section 15 AGG. You do not have to give reasons for the dismissal, and you should not do so in the letter either.

Works council. If a works council exists, it must be consulted before any dismissal under section 102(1) BetrVG, including during the probationary period. A dismissal without consultation is ineffective. Tell the council your reasons. For a dismissal within the first six months, the Federal Labour Court holds that it is sufficient to communicate to the employee representatives the subjective assessments that prompt you to dismiss, where you cannot point to any grounds founded on facts (Federal Labour Court, judgment of 22 April 2010, 6 AZR 828/08, bundesarbeitsgericht.de, concerning staff representation; the same standard applies to the consultation of the works council). The works council has one week to give its opinion (section 102(2) sentence 1 BetrVG). You have to build this week into the calendar before the six months expire.

Special protection against dismissal. This does not depend on the qualifying period. You may not dismiss a pregnant employee from the first day under section 17(1) of the Maternity Protection Act (MuSchG); this also holds where you are informed of the pregnancy only within two weeks after the notice is received. The prohibition on dismissal during parental leave under section 18 of the Federal Parental Allowance and Parental Leave Act (BEEG) likewise applies without any minimum period of employment. It is different with protection for severely disabled employees: the consent of the Inclusion Office under section 168 of the Social Code, Book IX (SGB IX), is only required once the employment relationship has existed for longer than six months (section 173(1) no. 1 SGB IX). During the probationary period you do not need it; but the prohibition on discrimination on grounds of disability applies from day one (section 164(2) SGB IX, section 7 AGG).

Form and receipt. Paper and a handwritten signature, section 623 BGB. Receipt is governed by section 130(1) BGB: notice is received once it has entered the employee’s sphere of control and it could reasonably be expected that they would take notice of it. A letter placed in the home letterbox at the usual time for post is received the same day; a letter deposited in the evening only the next. If the employee is on holiday, the notice is received all the same once it is in their letterbox; it is then up to them to attend to the time limit for bringing a claim. A registered letter with acknowledgement of receipt that is not collected has not been received.

Reference and time limit for a claim. Even after three months the employee is entitled under section 109(1) of the Trade Regulation Act (GewO) to a simple reference, and on request to a qualified one. The only way they can challenge the dismissal is by bringing a claim before the labour court within three weeks of receipt (section 4 KSchG); if the deadline passes, the dismissal is deemed effective under section 7 KSchG. This deadline applies to a dismissal in the qualifying period as well.

Time limits

The qualifying period is calculated under sections 187 and 188 BGB. If the employment relationship begins on 1 May, the sixth month ends on 31 October. The notice must be received by that day at the latest; the employment relationship may, because of the two-week period, end only in November. If the notice is received on 1 November, the qualifying period is complete and the Protection Against Dismissal Act applies, provided the establishment has more than ten employees.

The two-week period under section 622(3) BGB runs from receipt and ends on any calendar day, not only on the 15th or the end of the month. Receipt on Tuesday 20 October means the period ends on Tuesday 3 November. Dismissal without notice remains possible alongside this, but it requires good cause under section 626(1) BGB and must be declared within two weeks of your becoming aware of the facts (section 626(2) BGB).

Count backwards: the expiry of the six months, before that receipt, before that one week for the works council, before that your decision. Anyone who only begins to decide on the last day of the qualifying period has already missed the consultation.

How to proceed

Read the employment contract. Is a probationary period agreed, how long, with what notice period? Is there a collective agreement?
Work out the key date. The end of the six months from the start of employment. Put that day in the calendar, together with a reminder four weeks beforehand.
Check for special protection against dismissal. Pregnancy, parental leave, carer’s leave, works council office. A severe disability is not a case requiring consent during the probationary period, but it is a discrimination risk.
Consult the works council if there is one, with your reasons and with a week’s lead time.
Draft the notice. Short, without reasons, with a reference to the two-week period and the specific end date, and in the alternative to the next possible date. The original, signed by hand.
Secure receipt. Hand it over against a receipt, or use a messenger with a record of the time and place.
Prepare the reference and wait out the three-week period.

Example

An employee starts on 1 May with a six-month probationary period in an establishment that has a works council and 30 staff. In mid-October it becomes clear that it is not working out. On 19 October the managing director initiates consultation of the works council; on 24 October the council raises concerns, which is all it can do. On 27 October the notice is handed over on the premises and the employee signs for it. The notice period is two weeks, ending on 10 November. When the notice was received, the qualifying period was not yet complete, so the Protection Against Dismissal Act does not apply. If the employee tells the managing director on 6 November that she is pregnant, the dismissal is ineffective under section 17(1) MuSchG: the notification came within two weeks of receipt. Had the managing director initiated the consultation only on 28 October, the works council’s week would not have run out until 4 November, the notice would have been received only after that, and to justify it socially he would have needed a reason.

Common mistakes

Confusing the qualifying period with the probationary period. The probationary period in the contract is three months, the qualifying period six. Anyone who dismisses after four months has lost the two-week period, but not the freedom from the Protection Against Dismissal Act.
Receipt on the 1st of the seventh month. One day too late, and the dismissal needs a reason.
Forgetting the works council, or consulting it too late. The dismissal is ineffective, regardless of the grounds.
Putting reasons in the letter. “On account of poor performance” or “on account of your absences” is an invitation to section 612a BGB and the AGG.
Ignoring a pregnancy notification after the dismissal. The notification can still come within two weeks of receipt, and it takes effect.
“Extending” the probationary period. You may agree a longer probationary period, but it achieves nothing: the two-week period ends under section 622(3) BGB after six months at the latest, and the qualifying period under section 1(1) KSchG runs out independently of it. What comes after six months is an employment relationship with protection against dismissal.
Dismissing by email. Void under section 623 BGB, and the key date has passed.

Frequently asked questions

Can I extend the probationary period if I am still unsure?

You can agree to it, but it does not help you. Section 622(3) BGB grants the two-week period only for a maximum of six months, and the qualifying period under section 1(1) KSchG runs out regardless of any agreement. If you are unsure, you have to decide before the six months expire.

May I give notice on the last day of the probationary period?

Yes. What matters is that the notice is received on the last day of the six months. The employment relationship then ends two weeks later, that is, already in the seventh month; that does no harm.

May I dismiss while the employee is off sick?

Yes. Illness does not prevent a dismissal, not even during the probationary period. The only thing you may not do is dismiss because the employee has submitted a sick note; that would be a reprisal under section 612a BGB.

Do I have to tell the employee the reason?

No. For an ordinary dismissal in the qualifying period there is no duty to give reasons. Only in the case of dismissal without notice must you state the reason in writing on request (section 626(2) sentence 3 BGB).

Is the employee entitled to a reference after three months?

Yes. Section 109 GewO is tied to the termination, not to any minimum duration. The simple reference states the nature and duration of the work; if the employee asks for a qualified one, you must assess their performance and conduct.

Your next step

Dismissal during the probationary period is the simplest dismissal in employment law — provided the calendar is right. I will work out the key date for you, check for special protection against dismissal and for works council involvement, draft the notice, and make sure it is duly received — anywhere in Germany, by video or by telephone. You can read how I represent employers in employment law on my topic page. Tell me when the employee started and by when you have to decide; I will tell you which day is the last.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-22.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me when the employee started and by when you have to decide.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.