On 10 June 2026, the Supreme Court amended the established case-law concerning notice of termination of an employment contract during the probationary period (Case No. C33485923, SKC-35/2026 (hereinafter, the “Judgment”)).

By way of brief factual background, the parties had entered into an employment contract specifying the probationary period, however, on the morning of the first working day, the employee was instructed not to show up for work and notice of termination would be subsequently given. In that regard, the employee had not commenced performance of the assigned work duties.[1]

The Supreme Court upheld, in certain circumstances, an employer may give notice of termination during the probationary period before the employee has actually commenced their assigned work duties. It also underlined, the employee has no right to bring any action seeking to annul the validity of the notice, reinstatement or recovery of average earnings. The employee’s legal remedies are limited to a claim for compensation only if: (i) the notice involved a breach of the prohibition of differential treatment; or (ii) the prohibition against causing adverse consequences.[2]

What is the probationary period and when does it begin?

The probationary period may be specified in order for the employer to assess whether the employee is suitable for the job description. If the employment contract does not explicitly specify the probationary period, then one cannot be inferred outside of the written agreement. (Section 46(1) of the Labour Law.)

A probationary period may not generally exceed three calendar months. A period of up to six calendar months may be agreed upon by way of an agreement concluded with the employee’s trade union, provided the agreement does not reduce the overall level of the employee’s legal protection. Such an agreement may not extend beyond three calendar months.

For a fixed-term contract of up to six months, the probationary period may not exceed one calendar month; for a contract of up to one year, it may not exceed two calendar months. A temporary suspended period and any other period during under which the employee did not work for justifiable reasons, is excluded from the probationary period. (Section 46(2), (3) and (4) of the Labour Law.)

The Supreme Court also reiterated the concept of carrying out an “assessment” under employment law, distinguishing it from the broader sense of the probationary period governed under Section 46 of the Labour Law. An employer has discretion over whether to undertake an assessment and what it should include in light of the employer’s needs. The latter may cover a wide-ranging review of the employee’s suitability, including their curriculum vitae (CV), certificates and educational documents, interviews and competency tests, checks that no statutory restrictions apply, and information relevant to the employee’s reputation.[3]

By contrast, a probationary period within the meaning of Section 46 of the Labour Law is specified in the employment contract and forms a defined, limited period of the employment relationship. This is therefore similar to the statutory requirement, where a probationary period is agreed, the employment contract must specify both the period and its duration.[4]

The probationary period begins when the employment relationship commences. This may coincide with the date on which the employment contract is entered into, but the relationship may also be agreed to commence on a later date. Circumstances may therefore come to light between the conclusion of the contract and the employee’s actual commencement of work that materially affect the assessment of the employee’s suitability. For example, a statutory prohibition preventing the employee from holding the position, a forged educational document or certificate, false information previously provided, failure to meet the employer’s justified requirements or ethical standards, or a reputation incompatible with the position. If such information supports the conclusion that the employee is unsuitable for the work, the employer is not required, as a mere formality, to allow the employee to work for at least one day before giving notice of termination.[5]

Accordingly, the Supreme Court upheld that an employer may give notice of termination during the probationary period before the employee has actually commenced their assigned work duties if, after entering into the employment contract, the employer obtains information supporting the conclusion the employee is unsuitable and has not passed the probationary period. A court must examine whether such grounds exist if the employee brings a claim for compensation for the damage caused by the employer’s breach of the prohibition of differential treatment or the prohibition against causing adverse consequences.[6]

A subjective assessment does not permit arbitrary action by the employer

Reiterating its previous case-law, the Supreme Court highlighted “suitability” is not limited to education, work experience and measurable performance. Both parties may also assess whether “mutual trust” is possible. Mutual trust may be based on objective facts or subjective perception, an emotional assessment and alignment with workplace values. If mutual trust has not developed, the Supreme Court considers the outcome of probation may be negative and that the parties cannot be compelled to continue the employee relationship.[7]

This understandably raises the concern a reference to the lack of trust may become a convenient pretext for arbitrary action by the employer. However, the employer’s right not to state the reason in the notice itself does not mean that no actual reason exists. If the employee identifies circumstances that may indicate discrimination or adverse consequences connected with the exercise of their rights, the employer must disclose the actual reason for the notice in court and prove the relevant prohibition was not breached.

The court does not select the criteria for assessing the employee’s suitability on the employer’s behalf, but it does examine whether the reason given by the employer actually existed and whether it concealed a prohibited motive.[8]

In practice, employers should document the reasons for the notice as fully as possible and be able to produce supporting evidence in the event of litigation.

An employee’s reputation may also be one of the criteria used to assess their suitability. The employee’s social media profile, public posts, comments or other accessible information may therefore influence the employer’s assessment, even during the short period between the commencement of the employment relationship and the employee’s actual commencement of work. This may be particularly relevant where the position involves a high degree of trust, significant public exposure, client interests or the employer’s public image.[9]

Nevertheless, an employer has no unlimited right to investigate an employee’s private life. The Data State Inspectorate has underlined not all publicly available information may be freely used in recruitment. Section 33(2) of the Labour Law prohibits an employer from asking questions during a job interview that are unrelated to the direct performance of the intended work or the applicant’s suitability. Similarly, any review of a prospective employee’s social media activity should relate to the nature of the position and be necessary and proportionate.

An employee’s legal remedies following notice during a probationary period

Under Section 48 of the Labour Law, an employee may bring an action concerning a breach of the prohibition of differential treatment within one calendar month of receiving the employer’s notice of termination.

If the prohibition of differential treatment or the prohibition against causing adverse consequences is breached, the employee has the right to request compensation for losses and moral harm (determined at the court’s discretion). (Section 29(8) of the Labour Law.)

Chapter 13 of the Labour Law, “Probationary Period in Hiring for Work”, includes only one specific type of claim among all the remedies available to an employee under the Labour Law. An employee whose employment contract is terminated during the probationary period has no right to bring any claim other than that provided for under Section 48 of the Labour Law.[10]

Until recently, the applicable case-law recognised that an employee could seek reinstatement if the employer had exercised its right to give notice during the probationary period in a manner contrary to the meaning and purpose of probation or had breached the prohibition against causing adverse consequences. In the Judgment, however, the Supreme Court expressly departed from those findings.[11]

The recent departure from the applicable case-law by the Supreme Court, allows an employee to effectively challenge the notice of termination given during a probationary period where the employer breached the prohibition of differential treatment or the prohibition against causing adverse consequences. For the sake of completeness, under such an action, the employee cannot seek reinstatement. For such a claim to succeed, the court must find that the notice given during the probationary period was unlawful.[12]

Overall, the Judgment’s stance is favourable to employers. Employment law primarily seeks to protect employees, while the probationary period provides for a limited mechanism protecting the employer’s interests. The Supreme Court’s Judgment reinforces the employer’s ability to decide whether the employment relationship should continue. Once the probationary period has ended, the employer may give notice of termination only under the respective provisions of the Labour Law.

The employee is therefore left only with the right to seek compensation for pecuniary or non-pecuniary damages. Neither remedy is available where notice is given during a probationary period.

The employee’s ability to recover pecuniary damage or losses is relatively limited. An employee cannot claim average earnings for the period of forced absence from work. In theory, recoverable losses could include expenses incurred in reliance on the concluded employment contract and in preparation for commencing work, or other proven pecuniary losses directly caused by a discriminatory notice or a notice that caused prohibited adverse consequences.

As regards non-pecuniary damage (moral harm), the applicable case-law recognises that its existence is treated as established (or presumed) once a breach of the prohibition of differential treatment or the prohibition against causing adverse consequences has been proven. The court determines the amount of compensation in each case at its sole discretion, guided by a sense of justice and general principles of law.[13] The court will assess whether the requested compensation should be similar in comparable cases and different where the cases differ.

When determining compensation for moral harm, the court must consider criteria such as the importance of the rights and interests infringed; the nature and severity of the harm, including its duration, the person’s physical and psychological limitations and emotional harm; the circumstances in which the harm was caused; the wrongdoer’s conduct; the steps taken by the injured party to protect their rights; and the consequences of the harm, including whether they are irreversible.[14] In practice, compensation for moral harm in employment disputes is usually awarded in the range of EUR 300 to EUR 2,500.

Conclusions

Following the Supreme Court’s departure from its previous case-law. an employee’s options for challenging notice of termination by the employer during a probationary period are subsequently limited and further narrowed.

The employee cannot seek annulment of the notice or average earnings for the period of forced absence from work or reinstatement. Only where the employer has breached the prohibition of differential treatment when giving notice during the probationary period may the employee bring an action seeking compensation.

Although the employer’s assessment may be subjective, it must not be arbitrary or based upon prohibited differential treatment. If the employee identifies circumstances that may indicate discrimination or adverse consequences connected with the exercise of their rights, the employer must disclose the reason for the notice in court and prove the relevant prohibition was not breached.

An employer may give notice of termination before the employee actually starts work if, after the parties have signed the employment contract, the employer obtains information that gives it grounds to conclude that the employee is unsuitable for the agreed work. When assessing the employee’s suitability, the employer may consider their professional abilities, trustworthiness, reputation and alignment with workplace values.

[1]    Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 1.1-1.4.

[2]   Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 6.3, 7.1 and 9.4.

[3]    Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, para 9.2.

[4]   Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, para 9.3.

[5]   Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, para 9.4.

[6]   Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 7.2 and 9.4.

[7]    Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 6.1 and 6.2; Judgment of the Administrative Cases Department of the Supreme Court of 28 November 2014 in Case No. A420718610, SKA-547/2014, para 7; Judgment of the Civil Cases Department of the Supreme Court of 22 September 2015 in Case No. C15163815, SKC-2778/2015, para 7.

[8]   Judgment of the Civil Cases Department of the Supreme Court of 6 May 2009 in Case No. C27080207, SKC-157/2009; Judgment of the Civil Cases Department of the Supreme Court of 6 December 2013 in Case No. C27234912, SKC-2504/2013, para 7.2; Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 7.2 and 9.4.

[9]   Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 9.2 and 9.4.

[10] Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, para 7.1.

[11] Judgment of the Civil Cases Department of the Supreme Court of 3 June 2009 in Case No. C29159708, SKC-188/2009, para 8.2; Judgment of an enlarged panel of the Civil Cases Department of the Supreme Court of 14 November 2017 in Case No. C31407814, SKC-762/2017, para 9.3.8; Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, para 8.

[12] Judgment of the Civil Cases Department of the Supreme Court of 10 June 2026 in Case No. C33485923, SKC-35/2026, paras 6.3, 7.1 and 8.

[13] Judgment of the Supreme Court of 17 October 2017 in Case No. C33308515, SKC-1267/2017.

[14] Judgment of the Civil Cases Department of the Supreme Court of 6 December 2017 in Case No. C27159214, SKC-277/2017.