Probation Period and So-Called Sick Note

Number of expert articles describing various difficulties of the probation period have already been published.

Among the most important findings are definitely the following:  

• probation period has to be stipulated in written (Section 35(6) of the Act No. 262/2006 Coll., Labour Code, as amended (hereinafter referred to as the “Labour Code”),  
• probation period has to be stipulated as of the start day of employment at the latest (Section 35(3) of the Labour Code), 
• probation period can last no longer than three months or half of the duration of a fixed-term contract (Section 35(1 and 5) of the Labour Code), 
• probation period cannot be prolonged additionally (Section 35(4) of the Labour Code),
• probation period is a period, not a time limit. [1]

Exception from the above-mentioned regulation about not prolonging of the probation period then represents Section 35(4) of the Labour Code which claims that the probation period is prolonged about the time of the all-day obstacles to work because of which the employee doesn’t perform the job during the probation period, and also about the period of all-day holiday.

If obstacles to work occur (Section 191 – 209 of the Labour Code), probation period prolongs whether there were obstacles to work on the employee’s part (temporary inability to work, so-called sick note), or there were obstacles to work on the employer’s part (for example downtimes). In case of other circumstances which cannot be classified as obstacles to work, such as for example bank holidays, the probation period is not being prolonged. 

The above-mentioned rule appears rather unambiguous but on various specialized servers it is possible to find information which are at least misleading if not deceiving. Since meaning and purpose of probation period as such is to primarily create a certain time period when the employee and employer can "check out" each other, it is necessary to apply the rule only in relation to working days (not calendar days).  

As explained on example:

Employee gets sick during probation period entering the regime of being temporarily unable to work on 5^th November 2018 (Monday) with his/her sick leave ended by the doctor on 11^th September 2018 (Sunday). The employee was in the regime of a temporary inability to work for 7 days in total, nevertheless probation period is being prolonged only about 5 days because only 5 days were working days for the given employee (working hours scheduled from Monday to Friday).

If the employee from the above example counted with the probation period being prolonged about 7 days, he could be unpleasantly surprised when terminating of employment within probation period on the last day of such a probation period, because such termination of employment wouldn´t be valid and the employee would have to continue with the employment. 

Finally, it can be recommended to employees, if in doubt about correctly counting the end date of their probation period, they can use services of attorney or not to leave termination of their employment in probation period for the last minute. 

[1] available >>> here.