In a 9 December 2021 judgment, the Supreme Court had to decide whether the probationary period agreed in an employment contract was valid, as only a simple reference to the Workers' Statute and the applicable agreement had been made.

The case at hand concerned a company that had dismissed a pregnant employee after she had failed her trial employment period. The employment contract established a trial period "in accordance with the agreement or art. 14.1 of the Workers' Statute". The applicable collective agreement was the state agreement for consultancy companies.

The employee sued the company, requesting that the dismissal be declared null and void, as she was pregnant and considered that the trial period agreed in the contract was invalid. Both the Labour Court and the High Court of Justice ruled in favour of the employee.

The company turned to the Supreme Court to unify the doctrine of the appeal judgment.

The Labour Division of the Supreme Court examined article 14.1 of the Workers' Statute and article 10 of the applicable agreement and determined the following concerning the trial period in question:

  • article 14.1 of the Workers' Statute establishes the formal requirement that the trial period must be fixed in writing;
  • the duration of the probationary period must be expressly established, as article 14.1 of the Workers' Statute states that this period has limits, which are those established by the applicable collective agreement, or in the absence of this, the statute itself; and
  • outlining the exact duration of the trial period constitutes a minimum right of an employee because during this time either party may withdraw from the contract. This is particularly burdensome for the employee, who could be dismissed without notice and without the right to compensation.

The Supreme Court considered that, in the present case, the reference to the period provided for in the relevant legislation did not meet the above requirements. In this specific case, the agreement set limits for the duration of the trial period (identical to those in the Workers' Statute) that did not constitute a specific duration for the probationary period (only a maximum duration of six months was provided).

Based on the above reasons, the Court concluded that not including a specified start and end date for the trial period in the employment contract had created a situation of serious uncertainty for the employee, as she did not know at what point the trial period had ended during the six-month period that is provided for by the relevant legislation.

Therefore, the Court emphasised that a six-month trial period had not been agreed upon, as this requirement was only referred to in the contract, and not specified. Therefore, the trial period in the contract was null and void. Further, as the employee was pregnant at the time of dismissal, and given that it was an unjustified dismissal, the Court upheld the judgment under appeal, which also classified the dismissal of the employee as null and void.

For further information on this topic please contact Elena Esparza or Guillermo García at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected] or [email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at