Probationary period: Termination due to illness

 

An employee’s state of health can never justify the termination of the probationary period or any other suspension of the contract (see the cases in which an employment contract may be suspended). But what are the actual risks faced by an employer who disregards this prohibition?

The purpose of the probationary period is to enable you to assess the employee’s skills, and to allow the employee to assess whether the role is suitable for them.

This is why, if you decide to terminate a probationary period, your decision must be based solely on the employee’s professional qualities.

You cannot terminate the probationary period on grounds unrelated to the purpose of the probation, such as the employee’s state of health, as this would constitute discrimination.  

Similarly, citing disruption caused by the employee’s sick leave does not constitute grounds for terminating a probationary period. The courts consider this to be a reason unrelated to the employee’s professional competence.

However, it is entirely possible to terminate the employee’s contract despite their illness if the termination is linked to their incompetence, which was observed before the onset of the illness. You must, however, ensure that the employee has worked for a sufficient period before falling ill to enable you to assess their competence.