Most German employment contracts include a probation period (Probezeit) of 6 months — the statutory maximum under § 622(3) BGB. During this window, the dismissal protection regime is fundamentally different: the employer can typically dismiss with 2 weeks’ notice and without needing a „socially justified” reason. But „simpler dismissal” does not mean „no rights at all”. Even probation dismissals can be challenged on several grounds, and the protections kick in faster than many employees realise.
What probation does and doesn’t change
During the Probezeit:
- Notice period: 2 weeks (instead of the statutory 4 weeks to mid/end of month). Either side can terminate with this shorter notice.
- Kündigungsschutzgesetz protection: does NOT apply during the first 6 months of employment (§ 1(1) KSchG). The employer can dismiss without proving social justification.
- No requirement to give reasons: the dismissal notice does not have to state the reason for the dismissal.
- Reduced documentation: behavioural dismissal warnings (Abmahnungen) are not required as a precondition.
What probation does NOT remove:
- Special protections for pregnant women (Mutterschutzgesetz), severely disabled employees (§ 168 SGB IX), parental-leave employees (BEEG), works council members (BetrVG), apprentices, and others. These apply from day one.
- The prohibition on dismissals violating the AGG (anti-discrimination law) — on grounds of race, gender, religion, disability, age, sexual orientation. A probation dismissal that is in fact discriminatory remains unlawful.
- The form requirement under § 623 BGB: written notice signed by hand. Email or WhatsApp notice is void.
- The works-council consultation requirement under § 102 BetrVG (where a works council exists): dismissal without proper consultation is void, even in probation.
- The principle of treu und glauben (§ 242 BGB): a dismissal motivated by clearly improper reasons (revenge, personal grudge unrelated to performance) can be challenged even outside KSchG.
The 6-month boundary
The 6-month mark is the critical threshold. From day 1 of month 7, the employee gains full KSchG protection (provided the company has more than 10 employees) and the dismissal regime shifts completely. The clock starts on the agreed start date, not the contract signing date.
Practical consequences:
- An employer who wants to dismiss „during probation” must serve the notice such that it is received before the 6-month mark — not such that the notice period ends before the 6-month mark.
- Wait too long, and the employee gains full protection. The window for low-friction dismissal closes hard at the 6-month line.
- Some employers preemptively dismiss in months 4–5 to be safely inside the probation window.
Grounds to challenge a probation dismissal
1. Form defects under § 623 BGB
The notice must be on paper, signed in original handwriting, and delivered properly. Email, WhatsApp, scanned PDF, fax — all void. We see at least 1 in 10 probation dismissals with a form defect.
2. Wrong signatory
The notice must be signed by someone with the legal authority to dismiss — typically a managing director, an authorised HR officer, or a person with a written power of attorney. If signed by an unauthorised person and you reject the dismissal under § 174 BGB within a few days (typically 1 week), the dismissal is void.
3. Works-council consultation defect
If the company has a works council, the council must be consulted under § 102 BetrVG before any dismissal — including probation dismissals. The consultation requires a written notification of the dismissal grounds and a 1-week response period (3 days for extraordinary dismissals). Defective consultation makes the dismissal void.
4. Discrimination
If the dismissal is motivated by a protected characteristic (age, gender, race, religion, disability, sexual orientation, pregnancy), it is unlawful under the AGG even during probation. The employee must show prima facie evidence of discrimination; the burden then shifts to the employer to disprove it. Successful discrimination challenges can result in reinstatement and damages.
5. Pregnancy and parental leave protection
Under § 17 MuSchG, the dismissal of a pregnant employee is generally void — even during probation. The pregnancy must be known to the employer at the time of the dismissal, or be communicated within 2 weeks afterwards. Similar absolute protection applies during parental leave (§ 18 BEEG).
6. Severely disabled employees
Under § 168 SGB IX, the dismissal of an employee recognized as severely disabled (Schwerbehinderung — GdB 50+) requires prior approval from the Integration Office (Integrationsamt). Approval is rarely granted in cases of clear-cut probation dismissals, but the procedural requirement applies and protects the employee.
7. Treu und glauben violations
Where the dismissal is motivated by improper reasons clearly unrelated to performance — e.g., revenge for a complaint about working conditions, retaliation for asserting a vacation right, refusal of an unlawful instruction — the dismissal can be challenged under the general principles of good faith (§ 242 BGB). The bar is high, but not insurmountable.
The 3-week deadline applies to probation dismissals too
Severance in probation dismissals
Where the employer wants a clean exit and the employee has any leverage (form defect concern, discrimination claim, pregnancy, etc.), settlement severance is often available — though typically modest compared to post-probation cases:
- No leverage: typically no severance. The employer just dismisses; the employee leaves with the 2-week notice.
- Moderate leverage (e.g., form defect identified by lawyer, employer wants to avoid litigation): typically 1–3 monthly salaries.
- Strong leverage (pregnancy, discrimination, works-council defect): typically 3–6 monthly salaries or full re-employment.
- Special situations (employer caught in clearly unlawful pattern, reputational risk): can reach 6+ monthly salaries.
The Aufhebungsvertrag during probation
An employer who anticipates a problem with the dismissal (suspected pregnancy, form defect, works-council issue) often offers an Aufhebungsvertrag (separation agreement) instead. The employee should:
- Never sign on the spot. Take 24-48 hours minimum.
- Have the agreement reviewed by a lawyer.
- Understand the Sperrzeit risk at the Arbeitsagentur — signing an Aufhebungsvertrag without an „important reason” typically triggers a 12-week waiting period for unemployment benefits.
- Negotiate the severance number, the reference, the return-of-property terms, and the timing of the official end date.
What to do when you receive a probation dismissal
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Day 1: check the formal validity
Paper? Signed by hand? Signed by an authorised person? If any is missing — possible form defect.
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Day 1–7: get legal advice
Probation dismissals have a 3-week filing window, but the legal review should happen in the first week so you understand your options before time pressure builds.
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Within 2 weeks: written response if challenging
A formal Geltendmachung disputing the validity of the dismissal, citing the specific defects, reserving the right to file. Often produces a settlement offer without litigation.
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Within 3 weeks: file the Kündigungsschutzklage if needed
Required to preserve any challenge. Filed at the Arbeitsgericht where you work. The filing alone often catalyses a settlement.
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Register as job-seeking immediately
Within 3 working days of receiving the notice to avoid a Sperrzeit at the Arbeitsagentur for late registration. See our Job-seeking registration article.
Worked example
Sarah, a marketing manager hired by a 60-employee Cologne firm, is dismissed in month 4 of her probation period. The notice is delivered by email on a Friday. She suspects the dismissal is motivated by her recent disclosure of a pregnancy.
Issues:
- Form defect: email notice is void under § 623 BGB. Standalone ground.
- Pregnancy protection: dismissal of pregnant employees is generally void under § 17 MuSchG, even during probation, if the employer knew or learns of the pregnancy within 2 weeks. Standalone ground.
- Discrimination: dismissal motivated by pregnancy is a sex-discrimination violation under the AGG, exposing the employer to additional damages.
We file the Kündigungsschutzklage within 1 week of receipt. The employer immediately offers a settlement: 6 monthly salaries severance, Grade-1 reference, no Sperrzeit at the Arbeitsagentur. Sarah accepts.
Cost-benefit: 6 monthly salaries × €5,500/month = €33,000 severance, with Fünftelregelung tax treatment netting approximately €25,000 in hand. Total elapsed time from dismissal to settlement: 4 weeks.