Düsseldorf Regional Labour Court (3 Sa 317/24), decision of 14.01.2025
Introduction:
Dismissals during the probationary period - frightening news for many employees, a seemingly safe instrument for employers to flexibly part ways with new employees. But what if the boss has already congratulated the employee on being taken on? The Düsseldorf Regional Labour Court has issued a groundbreaking ruling on precisely this situation. For all those who deal with Employment and Labour Lawprotection against dismissal, probationary periods or operational procedures, it is worth taking a closer look.
The case: probationary period, promise of employment and then dismissal
The plaintiff, a commercial lawyer, had been employed by an association of reinsurers in Düsseldorf since 15 June 2023 - more than 200 employees, works council, open-ended contract, monthly gross salary of around 4,400 euros. In the employment contract: six-month probationary period, during which either party can terminate the contract with two weeks' notice.
The decisive interview took place just a few weeks before the end of the probationary period: After a jour fixe, the department director and HR manager explained that he had received an enquiry as to whether the plaintiff should be taken on. His verbatim answer: "Of course we will." The plaintiff was delighted and thanked him - it was clear to him that he had passed his probationary period and was guaranteed a job.
But then came the turning point: Shortly afterwards, the works council was consulted on the probationary period termination and the employment relationship was terminated in writing with effect from 22 December 2023 - still within the probationary period. Allegedly, the performance was insufficient. The employee sued - and the Düsseldorf Labour Court initially dismissed the claim. However, the regional labour court saw the matter differently.
The decision: Termination was in breach of trust and therefore invalid
The Düsseldorf Regional Labour Court overturned the judgement of the court of first instance and ruled: The termination during the probationary period was in breach of trust and therefore invalid.
The court emphasised that anyone who clearly signals to their employee at the end of the probationary period that they will be taken on "naturally" creates trust. Particularly relevant: The statement did not come from just anyone, but from the department director, who was authorised to make personnel decisions and had also previously signed the employment contract. There was no longer any reason for the plaintiff to expect to be dismissed or to look for other jobs.
The employer was also unable to convincingly demonstrate that new, serious reasons had arisen between the promise to take over and the termination. The court therefore deemed the employer's behaviour to be contradictory and therefore a breach of the principle of good faith (Section 242 BGB).
The reason: trust is more than just a "nice chat"
The Regional Labour Court made it clear that even during the probationary period, there are limits to the employer's scope for dismissal. A promise of employment made by the line manager responsible for personnel shortly before the end of the probationary period creates a protection of legitimate expectations. If the employee is nevertheless dismissed shortly afterwards without new, serious reasons, this may be an abuse of law.
The court's reasoning was clear:
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Protection of legitimate expectations: The employee was entitled to trust that he would not be dismissed after the supervisor authorised to make the decision had assured him that he would be taken on.
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No room for sudden U-turns: The employer should have explained what has changed so significantly since the takeover promise that a termination would be justified.
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Not all contradictory behaviour is prohibited - But where trust is deliberately created and then disappointed, the law draws a line.
What does this mean for you? Practical consequences & tips
For employees:
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If possible, have statements about your probationary period and employment confirmed - in writing, by e-mail or with witnesses.
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If your employer responds to a takeover promise with a dismissal, you should definitely have this reviewed by a lawyer. The judgement shows: There is also protection against unfair dismissal during the probationary period.
For employers and HR departments:
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Be careful with verbal promises or clear signals that you will be taken on during the probationary period - especially if these come from HR decision-makers or authorised signatories.
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If you still want to keep some room for manoeuvre, communicate this clearly and avoid making premature promises.
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If you decide to terminate your contract after you have agreed to take over the job, you should be able to give very good reasons for this - and document that new, serious circumstances have actually arisen.
For works councils:
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Check hearings on probationary period terminations particularly carefully if there were promises of employment beforehand. You can raise this as an issue and demand clear explanations from the employer.
Conclusion: Probationary period is not a free pass for arbitrariness
This judgement reminds us that employees are not defenceless even during the probationary period. Trust created by binding statements has legal weight - especially when it comes to professional existence. Employers are well advised to make promises carefully and to document clearly why they may decide not to offer a job after all.
In the end, it's not just what's in the contract that counts, but also how the parties actually behave. The following applies to both sides: clear communication, transparency and documentation pay off - in case of doubt, even in court.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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