01 July 2025

Make the Most of Probationary Periods

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  • Legal
  • Employment / Immigration

The probation period marks the true start of a job – a chance to get to know each other in daily work. Used wisely, it helps prevent future conflicts and unnecessary costs.

  • Astrid Lienhart

    Legal Counsel

The probationary period marks the outset of an employment relationship, offering both parties a valuable opportunity to become better acquainted and evaluate whether they are professionally and personally compatible. Although probationary periods are a standard feature in most employment contracts, the potential they offer is often overlooked or only marginally exploited. This is regrettable, as the true measure of compatibility is seldom revealed in the course of even multiple interviews, but rather emerges only during day-to-day collaboration. A wisely utilised probationary period can therefore prevent considerable expense and frustration for both sides.

Pursuant to Art. 335b para. 1 of the Swiss Code of Obligations (CO), the first month of an employment relationship is deemed a probationary period. By written agreement, this period may be extended to a maximum of three months (Art. 335b para. 2 CO). The probationary period begins with the actual commencement of work and may not be extended beyond three months, save for specific exceptional circumstances. Such exceptions are limited to cases of illness, accident, or compulsory legal obligations (e.g. military service), provided these have effectively reduced the duration of the probationary period. This list is exhaustive: other forms of absence – such as leave or holidays – do not entitle an extension, even if they result in a de facto shortening of the period.

During the probationary period, either party may terminate the employment relationship at any time by giving seven days' notice. The parties may contractually agree on a different notice period, whether shorter or longer. In practice, however, we observe that terminations during probation are often accompanied by an immediate release from duties (garden leave or medical certificates). For this reason, a prolonged notice period tends to be counterproductive. From a legal and pragmatic perspective, it may even be preferable to agree upon a shortened – or entirely waived – notice period during probation, both of which are permissible under Swiss law.

Unlike regular terminations, which (unless otherwise agreed) must take effect at the end of a calendar month, dismissals during the probationary period may take effect on any date. It is, incidentally, legally possible to resign from a position even before the first day of work. However, the legal question as to when the notice period begins in such a case – upon receipt of the resignation or only from the contractually agreed start date – remains unsettled in jurisprudence.

What is clear, however, is that the notice of termination must be received by the other party within the probationary period. The notice period itself may, however, extend beyond the end of probation.

During the probationary period, statutory employee protection remains largely in abeyance. The rules governing protection from dismissal during certain periods (commonly referred to as “blocking periods”, “Sperrfristen”) do not yet apply, and the threshold for a dismissal to be deemed abusive is significantly higher than after the end of the probationary period. Moreover, reference letters are typically not issued for employment relationships that end during the probation period; a simple certificate of employment is usually provided instead.

Naturally, the suitability of a new hire can only be properly assessed if their onboarding is structured and purposeful. This presupposes clearly defined roles and responsibilities, as well as an onboarding process that permits a realistic evaluation of performance. Should performance or behavioural shortcomings become apparent and fail to improve despite constructive feedback – particularly during the critical third month – serious consideration should be given to terminating the relationship before the probationary period ends, thereby allowing both parties to separate swiftly and with minimal disruption.

Experience shows, however, that this optimal approach is not always followed. Frequently, new employees are left to seek out essential information on their own, prioritise tasks on their own, and familiarise themselves with their new role without receiving any meaningful feedback. Such an approach is clearly suboptimal and often results in the probationary period elapsing without a conclusive assessment of the employee’s suitability.

We would be pleased to assist you in drafting employment contracts with tailored provisions on probationary periods and advising you on how to avoid common pitfalls in this regard.
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