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The trial period is a period which can be scheduled at the beginning of a work contract, to enable the employer to test the skills of the employee or the new employee to ensure that the function satisfies.
During this period, this clause allows both parties to break more quickly, and without compensation the contract of employment. The validity of any clause test is subject to very strict conditions of form and substance, and it is subject to respect of the latter that he be permitted to depart from the usual rules of breach of contract. Before the law of June, it was he who prevailed in the trial period to prove its existence (in practice most often the employer). To reduce the litigation the law of June on the modernisation of the labour market has changed the diet of the trial period in regards to its introduction. Now, the trial period must be provided for in the individual contract of employment or letter of engagement.
Are no longer possible trial periods only as provided in the collective agreement.
The trial period may be renewed only once and provided that the contract work and the collective agreement stipulate.
Note: the Court of cassation has stated that a trial period can only be the result of the contract of employment or collective agreement and may only be imposed by a use. During the test, the employment contract can be freely broken by the employee or by the employer, without any formality or compensation. Since the law of modernisation of the labour market of June, a period of notice minimum must be respected, both by the employer and the employee, in the absence of a treaty provision. The rules on dismissal do not apply However, the rupture may not be based on a discriminatory reason, if it is based on disciplinary grounds, the employer must follow the disciplinary procedure. A condition, however, has been raised by the Court of cassation: the break must not be abusive, that is to say, in particular, should not intervene too early, the employer must have had the time really appreciating the professional capabilities of the employee.
The trial period is to distinguish it from other concepts, such as the 'probationary period: a probationary period for a promotion, during performance of the contract of employment does not constitute a trial period.
It is also different from the 'consolidation period' established in the framework of the CNE (Contract new hires), although this distinction has many doctrinal debates. Without amendment, in written form, the duration of the test time provided by the law in switzerland is month. However, most companies set a trial period of months, which is the legal maximum.
English law provides for a trial period which both parties are free to determine the duration. However, it is almost never used The usefulness to the employer is therefore limited.
However, for some positions, it may fix a period of probation period exceeding one year.
In this case, the English case law considers that the employer must show reasons to justify such a period.
In English law the abuse is due to the fact that the employer has not offered the employee the opportunity to make its evidence.
