Trial period

The trial period is one period which can be envisaged at the beginning of a Work contract, to make it possible the Employeur to test the professional capacities of paid or to the new employee to make sure that the function satisfies it.

During this period, this clause makes it possible the two parts more quickly to break and without allowance the work contract.

In France

The validity of any clause of test is subjected to basic very strict conditions and of form and it is with the help of the respect of this one that it will be allowed to derogate from the usual rules of rupture of the contract. The trial period requires a writing in any event.

The trial period is legally optional.

Thus, the trial period must be envisaged:

  • either in the work contract (clause express),
  • or by the collective agreement. In this case, it is binding to the employee only if the employer informed of it at the time of the recruiting or if he enabled him to take note of the collective agreement.

The duration of the trial period varies according to the type of contract:

  • for the CDD (limited time contracts), the duration cannot exceed 1 day per week within the 2 weeks limit for a 6 months maximum CDD. In the event of two successive contracts, one trial period is valid only if it is about a different station (Case. Plowshare, October 30th, 2000)
  • for the TDCI (permanent contracts), it is appropriate to refer to the work contract or the collective agreements.

Note: the Court of appeal specified that one trial period can result only from the work contract or the collective agreement and cannot be instituted by a use. During the test, the work contract can be freely broken by the employee or the employer, without notice (except contrary conventional provision), nor allowance. The rules concerning the dismissal do not apply. However, the rupture cannot be founded on a discriminatory reason; and if it is founded on a disciplinary reason, the employer must observe the disciplinary proceedings. A condition however was posed by the Court of appeal: the rupture should not be abusive, i.e., in particular, does not have to intervene too early; the employer must have had time to really appreciate the professional capacities of the employee.

The trial period is to be distinguished from other concepts, in particular the " period probatoire" : one probationary period for a professional promotion, in the course of execution of the work contract does not constitute a trial period.

It is also different from the " period of consolidation" instituted within the framework of the CNE (Contract news recruitings), although this distinction causes many doctrinal debates.

In England

The English right envisages one trial period of which the two parts are free to determine the duration of it. However, it is practically never used.

This has primarily two reasons: