Almost all jobs involve a probationary period in Spain. In legal terms, we can analyze this figure as follows: It is a covenant established, from the beginning, in the employment contract.

It will depend on the willingness of the parties involved, i.e. the employee and the company, whether or not to agree to it. It may also turn out that, as a result of previous work, the probationary period is prohibited.

If the contract is established for a period of less than 6 months, the probationary period cannot be extended beyond 30 days, unless otherwise established in the collective bargaining agreement.

Only by mutual agreement, between the employee and the company, can the trial period be used in an employment contract. Otherwise, it will be understood that this figure does not exist, as stated in the Supreme Court ruling of 5/10/01, appeal 4438/00.

In simpler words, the probationary period is a temporary period in which both the employer and the employee can terminate the relationship without prior notice and without justifying the decision.

In this way, the employee, during the trial period, can check his or her conformity with the established working conditions. On the other hand, the employer is entitled to verify the skills and productivity of the person hired.

How and when should the probationary period be carried out?

As explained above, it is a figure that is agreed from the beginning of the labor relationship. Therefore, the trial period will be null and void if it is agreed at any other time.

This was stated by the Superior Court of Justice of Madrid in its ruling of April 3, 2002, marked with the number 145/02.
But, there is an exception to the rule. The ruling does not apply if only 24 hours have elapsed between the start of the service and the signing of the contract.

It should also be taken into account that a trial period agreed upon 72 hours after the beginning of the employment relationship will be considered null and void.
However, for a probationary period to be valid, it must be expressly negotiated and in writing.

Can an employee who is on leave during the probationary period be terminated?

Basically, Article 14.3 of the Employee’s Statute establishes that temporary disability only occurs under certain situations.
For example, risk during pregnancy or breastfeeding, birth or adoption, being a victim of gender violence or any other situation that puts the employee’s integrity at risk during the probationary period.

These are situations that interrupt the calculation of the trial period, as long as there is an agreement between the parties involved.
That is, if you are on sick leave during your probationary period, that period will be suspended. It is reactivated once you are discharged from work.
On the other hand, this does not mean that the employer cannot fire you. Even though you are on sick leave, you are still within the probationary period, so you can be dismissed without notice and without justification, according to the regulations.

The foregoing is settled case law in Spain by the Supreme Court. This is demonstrated in the judgment of December 12, 2008, which states the following:

The agreement to extend the probationary period initially established is a guarantee for the parties involved. It is indicated that it can be extended indefinitely, beyond what is legally established.

But this does not mean that the employer’s right to withdraw from the contract is nullified by this parenthesis.
Therefore, when this withdrawal occurs during the labor interruption period, it is considered that the extinctive effects, proper of the employer, if reaching an unfair dismissal as understood by the opposition opinion.

Therefore, it is not considered an abusive or discriminatory dismissal if the case is the one contemplated in this rule.