Before starting vocational training, applicants often do an internship at the training company. In November 2015, the Federal Labor Court had to decide a case about whether the internship should be counted towards the probationary period of the vocational training contract. This is of great importance because a vocational training contract can only be terminated freely during the probationary period. After that, an important reason is required, as is the case with termination without notice.
The facts: After finishing school, a trainee applied for an apprenticeship as a retail salesman. The training was supposed to start – as usual – on August 1st. Before that, however, the trainee completed an internship lasting several months. A three-month probationary period was then agreed in the vocational training contract. The company owner then terminated the vocational training contract during the probationary period without giving any reasons.
The trainee did not agree with this and said that the termination was invalid. The previous internship period was to be counted towards the probationary period. The termination therefore no longer occurred during the probationary period, so an important reason was required, which was not the case.
The Federal Labor Court, however, confirmed the termination in its decision. The Vocational Training Act requires the agreement of a probationary period, which can last from one to four months. The idea is that the trainee and the trainer should have the opportunity to get to know each other and try each other out in order to be able to judge whether the training can be carried out over the entire period of the fixed training contract – usually three years. Here, one might think that getting to know each other during the internship is sufficient for this.
The Federal Labor Court, on the other hand, took the view that this mutual testing was only possible under the conditions of the vocational training relationship with its specific obligations. Therefore, according to the Federal Labor Court’s ruling, a previous internship cannot be counted towards the probationary period of the subsequent training relationship.
(Source: BAG, judgment of 19.11.2015, file number: 6 AZR 844/14)
Important: A probationary period must be agreed, and this must be at least one month and no more than four months (Section 20 of the Vocational Training Act). The agreement of the probationary period and, if possible, the full duration are particularly important for the training companies. After the probationary period has expired, separation from the trainee is only possible under very difficult conditions. A so-called “important reason” is required, as regulated in Section 626 of the German Civil Code. This means that there must be reasons that make it unreasonable for the employer to continue the training relationship. The threshold for this is set high by case law – rightly in the interests of the trainees.
Author: Peter A. Aßmann, specialist lawyer for employment law
