Probationary Period Dismissal in Germany: The Works Council Trap

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A probationary period dismissal in Germany requires no grounds, because statutory unfair dismissal protection only begins after six months. It does still require a works council hearing under section 102 of the Works Constitution Act (BetrVG). Skip it, or explain the decision badly, and the dismissal is invalid on a procedural point alone — with no reason ever having been needed.

Key points

• The hearing obligation applies to every dismissal, including during probation and in small businesses outside the scope of the Protection Against Dismissal Act (KSchG).

• A dismissal without a proper hearing is invalid under section 102(1) sentence 3 BetrVG.

• Formulaic wording such as "failed probation" is not enough.

• The counterintuitive part: an employer who partly explains its assessment is often more exposed than one who states a bare value judgment.

Contents

1. What probation does and does not remove

2. The princible of subjective determination

3. Why saying more can be worse than saying less

4. What ramins unsettled

5. Probationary period dismissal in Germany: practical steps

6. Frequently asked questions

1. What probation does an does not remove

Two things fall away during the first six months of employment in Germany. General dismissal protection under section 1(1) KSchG has not yet vested, so no person-related, conduct-related or operational reason is required. And where a probationary period has been agreed — six months at most — a shortened notice period of two weeks applies under section 622(3) BGB.

What does not fall away is the works council. Section 102(1) sentences 1 and 2 BetrVG require the employer to hear the works council before every dismissal and to state the reasons prompting it. This applies regardless of whether the employee already enjoys dismissal protection — during the qualifying period, and in small businesses under section 23(1) KSchG as well.

The consequence is disproportionate to the mistake. The dismissal does not fail for want of a reason, since none was needed. It fails on a mere procedural defect.

2. The principle of subjective determination

Even without a statutory ground, the employer must tell the works council why it wants to part with the employee. The governing principle is subjektive Determination: what must be communicated are the reasons that, from the employer's own subjective viewpoint, drove the decision.

For probationary dismissals this splits into two cases.

Where the decision rests on a value judgment not grounded in objectifiable facts, communicating that judgment is sufficient, and the judgment need not be substantiated in detail. The underlying accumulation of small observations — the factual core — need not be set out. German labour courts have accepted formulations such as: the employee did not prove himself during probation, was not suited to performing the assigned tasks properly, and the necessary relationship of trust could not be established on account of a lack of personal suitability (BAG, 22 April 2010 – 6 AZR 828/08). Also accepted: that the employee does not meet requirements according to the employer's general subjective assessment (BAG, 3 December 1998 – 2 AZR 234/98), or has not fulfilled the expectations placed in him (BAG, 18 May 1994 – 2 AZR 920/93).

Where specific conduct or substantiated facts form the actual reason, the employer must inform the works council of them and cannot fall back on a general value judgment (BAG, 12 September 2013 – 6 AZR 121/12). If the employee insulted a supervisor or was absent without excuse, and that incident triggered the decision, it must be stated.

3. Why saying more can be worse than saying less

The practical risk in a probationary period dismissal in Germany sits between the two categories, and it runs against instinct. An employer that justifies its assessment at least in general terms is more likely to create a ground of invalidity than one that confines itself from the outset to a bare value judgment. The mechanism is that a partial explanation invites the argument that concrete facts were in truth decisive — and were then communicated incompletely. That incompleteness makes the hearing defective, and the dismissal fails.

4. What remains unsettled

The boundary between a value judgment with an unstated factual core and substantiated facts that must be named is not sharply drawn in the case law of the Federal Labour Court. No general formula separates them; the classification turns on what the employer itself treated as decisive.

This produces an evaluative contradiction that the Berlin Regional Labour Court put plainly: it can barely be made comprehensible to an average employer or HR manager (LAG Berlin, 22 January 1998 – 16 Sa 136/97). The employer that communicates more is exposed to a risk the employer that communicates less avoids — an outcome hard to reconcile with the participatory purpose of section 102 BetrVG.

What follows for practice is not "write more" but "decide first". Establish what actually drove the decision, then draft the hearing to match that category — and do not drift between the two.

5. Probationary period dismissal in Germany: practical steps

6. Check whether a works council exists before any probationary dismissal, including for employees hired weeks earlier.

7. Never use formulaic wording. "Probationary dismissal" or "probation not passed" will not carry a hearing.

8. Classify the reason before drafting. Value judgment, or concrete incident? The answer determines how much detail is required — and how much is dangerous.

9. If a specific incident triggered the decision, state it. Omitting it while citing general unsuitability is the classic defect.

10. Document the hearing and the response period. The burden of showing a proper hearing rests with the employer.

6. Frequently asked questions

Can an employer dismiss during probation without a reason in Germany?

Yes, as far as substantive grounds are concerned. General dismissal protection under section 1 KSchG applies only after six months of continuous employment. Procedural requirements, above all the works council hearing, still apply in full.

Is a works council hearing required for a probationary dismissal?

Yes. Section 102(1) BetrVG requires a hearing before every dismissal, irrespective of length of service or company size. A dismissal without one is invalid.

Is "failed probation" a sufficient reason to give the works council?

No. Courts require at least a short description of the subjective reasons behind the decision. Purely formulaic wording is treated as no reason at all.

Does this apply to small businesses?

Yes, wherever a works council has been established. The small-business exemption in section 23(1) KSchG concerns dismissal protection, not works council participation.

Does it apply to international employers with German operations?

Yes. The obligation attaches to the German establishment and its works council, regardless of where the parent company is based or which law governs the group's internal policies.

Related reading

• Inflation-Indexed Pay Clause in Germany: Void, but Employers Still Pay — another case where an employer lost on procedure while being right on substance.

• Kündigungsschutz Hochverdiener: Was sich ab 2027 ändern soll (in German) — the planned reform leaves the section 102 BetrVG hearing untouched; a defective hearing would make the employer's application for judicial termination inadmissible.

• English-language and bilingual legal advice in Munich — how we work with international clients.

About the author

Noah Osuji, Rechtsanwalt Kanzlei Osuji, Munich

Advice available in English and German. Enquiries in either language are welcome.