Many companies still believe that during the probationary period they can freely terminate the contract without significant consequences. However, when the decision coincides with a period of sick leave (IT), the situation becomes much more complicated than it seems.
As you may already know, the company retains the right to terminate the employment relationship during the probationary period without resorting to disciplinary dismissal or having to justify a complex cause. However, that does not mean that any decision is automatically immune from a legal claim.
When failure to pass the probationary period coincides with a period of temporary
disability (IT), the legal focus shifts entirely. And it is becoming increasingly common for courts to examine whether there were truly objective professional reasons or whether, on the contrary, the decision was linked to the employee’s health condition.
A medical leave of absence does not prevent the termination of the contract during the probationary period, but it does significantly increase the risk of the termination being deemed null and void.
The short time span can become a serious problem
One of the factors that courts currently place the greatest emphasis on is the proximity between:
- Hiring
- The start of temporary disability leave
- Notification that the employee did not pass the probationary period
When only a few days of actual work have elapsed, it is difficult to prove that the company had sufficient time to assess the employee’s professional suitability. And that is where the main risk lies. If there is no objective and documented explanation, the decision may be interpreted as being directly related to the employee’s medical
condition.
The shorter the period of employment prior to sick leave, the more difficult it is to justify a claim of professional unsuitability.
The company must be able to demonstrate that the decision is unrelated to health.
Currently, it is not sufficient to simply claim that the employee was on a probationary period. If there are indications of possible discrimination, the company will have to
prove that the decision was based exclusively on issues related to job performance an not on the employee’s illness or sick leave.
For this reason, it is advisable to keep follow-up reports, evaluations by supervisors, records of objective incidents, internal emails sent prior to the temporary disability
leave, or evidence of a lack of adaptation or poor performance.
The complete absence of documentation often becomes one of the main problems in a company’s defense.
Decisions made “verbally” or without documented follow-up are particularly vulnerable
in the face of a legal claim.
Some collective bargaining agreements and employment contracts suspend the probationary period during temporary disability
Another aspect that many companies overlook is that some collective bargaining
agreements or employment contracts expressly provide for the suspension of the
probationary period when an employee begins a period of temporary disability.
In such cases, the calculation is suspended until the employee returns to work, and the company subsequently retains the remaining time to evaluate the employee’s adjustment and performance.
Precisely for this reason, before notifying an employee that they have failed to meet
expectations during a temporary disability leave, it is advisable to carefully review the
applicable collective bargaining agreement, the signed employment contract, the
agreed-upon clauses, and the company’s internal regulations.
Ignoring a clause suspending the probationary period can lead to significant labor
disputes.
A declaration of nullity may require the company to reinstate the employee
When the court finds evidence of discrimination related to the employee’s health status and the company fails to refute it, the consequences can be particularly severe.
The termination may be declared null and void, requiring the company to:
- Rehiring the employee
- Pay back pay
- Pay any additional compensation
And all this even if, formally speaking, the company acted within the probationary period.
Protection against discrimination based on health status is significantly tightening the
judicial scrutiny of these terminations.
Summary Checklist for Companies When an Employee Is on Temporary Disability During the Probationary Period
Check whether the collective bargaining agreement or the employment contract
provides for the suspension of the probationary period during temporary
disability.
- Verify how many actual days the employee worked before going on sick leave.
- Document any objective issues related to performance, adaptation, or suitability
identified before the temporary disability began. - Retain emails, reports, or internal evaluations from before the sick leave began.
- Avoid hasty decisions made solely because the temporary disability coincides
with the termination. - Analyze whether there is an excessively short timeframe between hiring, sick
leave, and termination. - Ensure that the decision can be justified on professional grounds completely
unrelated to the employee’s health status. - Review the notice of failure to meet performance standards before delivering it
to minimize the risk of it being deemed invalid.
For more information, consult our Labor Law Advisory Service.
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