Employment law
Probation and illness: can you end the probation of an employee who falls ill?
Three weeks after joining Kanu Numérique SARL, Fatoumata, a network technician on probation, sends in a medical certificate: twelve weeks off sick. At the office, nobody has yet been able to assess her work, and the cabling jobs are piling up. The manager remembers that probation ends "without notice or compensation" and is already drafting the letter. He is about to confuse the freedom to end probation with the freedom to choose any reason.
The companies and people named in this article are fictitious. Their names are used for illustration only.
1. What exactly are we talking about?
The probationary period is the time, at the start of the contract, during which the employer checks that the employee can do the job, and the employee checks that the post suits them. Kanu Numérique, with 25 employees, hired Fatoumata on 3 March 2026, with a three-month probation.
Probation is never presumed. It must be expressly stipulated in writing and state the job, the occupational category and the length (Labour Code, article L.30).
| Element | Rule | Text |
|---|---|---|
| Form | An express written clause, possibly a separate contract known as a probationary contract | Article L.30 |
| Standard length | Equal to the notice period for the category | Article L.30 |
| Maximum length | 6 months, renewal included, to reflect the techniques and customs of the profession, or for a beginner | Article L.30 |
| Pay | That of the category of the job held | Article L.31 |
| Length of service | Probation counts if the hiring becomes permanent | Article L.32 |
Why does probation exist? It allows a skill check before a lasting commitment. That is also what sets its limit: it is for assessing the work, nothing else.
The most common mistake: verbal probation
Probation agreed "by word of mouth" does not exist. A contract that does not meet the definition of a probationary engagement is an open-ended contract from day one (article L.19). See Open-ended contract: probationary period, amendment and termination.
Probation is for assessing the work. It is for nothing else.
What you need to do
- Write the probationary period into the contract, with the job, category and length.
- Justify any length beyond the notice period by the techniques of the profession or beginner status, within the six-month limit.
2. Ending probation: what the Code sets aside, and what it keeps
The Kanu Numérique manager is right on one point: probation ends under a lighter regime. Articles L.39 to L.59 do not apply to a probationary contract, unless otherwise agreed. Either party may end it without notice and without compensation (Labour Code, article L.33).
| What is set aside during probation | Articles |
|---|---|
| Informing the labour inspector before a dismissal | L.40 |
| Notice and the payment that replaces it | L.41 and L.42 |
| The weekly job-search day | L.44 |
| The rules on economic dismissal | L.46 to L.50 |
| Damages for wrongful termination and compensation for procedural defects | L.51 and L.52 |
| Severance pay and long-service payment | L.53 and L.54 |
Two caveats apply. First, "unless otherwise agreed": your collective agreement may reinstate some of these rules. Second, article L.33 sets aside only articles L.39 to L.59. The rest of the Code still applies to an employee on probation, in particular the ban on discrimination (article L.4) and the rules on suspension of the contract (articles L.34 and L.37). Had Kanu Numérique brought Fatoumata in from another town, the company would also have to pay her return journey if the contract ended (article L.30).
Probation ends without notice. It does not end for just any reason.
3. Why illness cannot be the reason
Article L.4 lies outside the range set aside by article L.33. It defines discrimination as any distinction, exclusion or preference that destroys or impairs equality of opportunity and treatment in employment. It specifically prohibits any discrimination based on invalidity, disability, HIV and AIDS (Labour Code, article L.4).
The same article states what remains permitted: distinctions based on the qualifications required for a job are not discrimination. The dividing line matches exactly the purpose of probation.
| Reason for termination | Its nature |
|---|---|
| "You have not mastered equipment configuration" | An assessment of the qualifications required: the very purpose of probation |
| "You are on sick leave" | A reason based on health, unrelated to qualifications |
| "Your absence is disrupting the department" | The same reason in other words: the cause is still the illness |
Ending probation because of illness uses probation for something other than assessing ability. The exemption from notice concerns the form of termination, not the lawfulness of its reason.
The most common mistake: writing down the prohibited reason
"Termination of your probation due to your sick leave", "your unavailability does not allow us to continue": such wording itself proves that health drove the decision.
What you need to do
- Base any termination of probation on an assessment of the work, never on health.
- Reread every termination letter to remove any reference to illness or absence.
4. Illness also suspends a probationary contract
Article L.34 is not among the articles set aside either. Fatoumata's contract is therefore suspended during her absence for an illness confirmed by a medical certificate. This suspension is limited to six months, but extends until the employee is replaced (Labour Code, article L.34).
During this suspension, the employer must compensate the employee. In the first year of service, the payment equals full pay for a period equal to the notice period. Beyond the first year, a payment of half pay for the following month is added (Labour Code, article L.37). An employee on probation is, by definition, in the first year.
Example. Fatoumata is paid 250,000 XOF a month. Her sick pay is calculated as follows:
Notice period for an employee paid monthly: 1 month (article L.41)
Payment owed by the employer: 250,000 XOF × 1 month = 250,000 XOF
Beyond this first month off: nothing under article L.37 during the first year, unless the collective agreement is more favourable
Two practical consequences follow. The absence is entered in the payment register as sick leave (article L.107). And, up to six months, it counts as work time for calculating annual leave (article L.149). See Illness.
On probation or not, a sick employee's contract is suspended, not ended.
What you need to do
- Record the medical certificate and treat the sick leave as a suspension of the contract.
- Pay the article L.37 payment, calculated on the notice period for the category.
5. The real trap: the end date passing during sick leave
A probationary engagement has a fixed end date, calculated from date to same date (article L.30). In other words, it is counted date to date: a three-month probation starting on 3 March ends on 3 June.
The Code does not say that illness postpones that date. It does, however, draw a very clear consequence from continuing work after it: if the employee keeps working after probation ends without the probation having been renewed, the parties are bound by an open-ended contract taking effect on the first day of probation (article L.30).
| Date | Event at Kanu Numérique |
|---|---|
| 3 March 2026 | Start of the three-month probation |
| 24 March 2026 | Twelve weeks of sick leave, until 15 June |
| 3 June 2026 | Probation end date, during the sick leave |
| 16 June 2026 | Fatoumata returns: if Kanu takes her back without having renewed the probation, she has been on an open-ended contract since 3 March |
What a missed end date costs
Once the open-ended contract is in place, any termination becomes a dismissal. Kanu Numérique would then have to give one month's notice, in writing and with reasons (article L.41), inform the labour inspector (article L.40) and show a legitimate reason or face damages (article L.51). For Fatoumata, notice not observed would already be worth 250,000 XOF (article L.42).
The three options, before the end date
- Renew the probation, in writing as a precaution, like the probation itself, within the six-month ceiling including renewal. For Kanu Numérique, three more months at most.
- Confirm the hiring, if the work already observed is enough.
- End the probation, if an unfavourable professional assessment was formed before the sick leave and is documented.
The most common mistake: believing sick leave extends probation
Many employers think illness "freezes" probation and that they will decide when the employee returns. The Code does not say so. Waiting for the return means risking a backdated open-ended contract.
Letting the probation end date pass means hiring.
What you need to do
- Note the end date of each probation as soon as the contract is signed.
- Decide before that date, even if the employee is on sick leave: written renewal, confirmation or termination based on the work.
- Check that any renewal does not take the total length beyond six months.
6. What remains possible, and how to go about it
Ending probation remains possible if it rests on a professional assessment formed before the sick leave, and if that assessment is documented.
| Situation | Defensible termination? |
|---|---|
| The employee worked for several weeks, difficulties were observed and recorded, then the employee fell ill | Yes: the reason existed before the sick leave |
| The employee fell ill in the first few days, before any assessment could be made | No: there is nothing to assess except the absence |
| The employee is absent for a long time and the company must fill the post | The need is real, but the reason is still the absence: treat it as a suspension, not as a failed probation |
Fatoumata's case resembles the second: three weeks of attendance, no written assessment. Ending the probation now would be hard to defend. Kanu Numérique would do well to renew the probation in writing before 3 June, so as to have real weeks of assessment after her return.
The method comes down to a few habits: write the assessment as probation goes along, through dated progress reviews, not at the moment of decision. An assessment drafted after the medical certificate arrives will convince nobody. For the general recruitment framework, see Recruitment.
An assessment written before the sick leave protects you. One written afterwards incriminates you.
What you need to do
- Hold dated progress reviews throughout probation, however brief.
- Keep evidence of difficulties observed before any sick leave.
- Prefer written renewal to termination when no assessment has been possible.
Key takeaways in 6 points
- Write the probationary period into the contract: without it, the employee is on an open-ended contract from day one.
- End probation without notice if necessary, but only for a reason linked to professional ability.
- Never mention illness or absence in a letter ending probation.
- Treat sick leave as a suspension of the contract and pay the article L.37 payment.
- Decide before the probation end date, even during sick leave: an employee kept on after that date is on an open-ended contract from the start of probation.
- Document the assessment as probation goes along, so you can prove it came before the sick leave.