What rules apply to termination during probationary periods under the Working Environment Act? What rights do employees have, and what special rules apply in relation to normal ongoing employment relationships?

General information about probationary periods

According to Section 15-6 of the Working Environment Act, a probationary period must be agreed in writing in order to be valid. A probationary period of up to six months may be agreed. There are special rules regarding the extension of probationary periods in the event of absence.

During the probationary period, it is important to set clear expectations for the employee. Evaluations must be carried out during the probationary period so that any concerns can be identified at an early stage. It is important that the employer ensures that this follow-up is documented. This can typically be done by means of a short report or a summary email after each meeting. It is important that the employee receives such ongoing feedback so that he or she has a real opportunity to improve their performance.  

Before termination

If the employer sees that the employee is not adapting to the work, or if their professional competence or reliability is too weak, the Working Environment Act allows for dismissal during the probationary period. Case law has made it clear that the threshold for dismissal should be lower during the probationary period than in a normal ongoing employment relationship.

However, it is still the employer who must prove that there are objective grounds for dismissal. In order to meet this burden of proof, it is important to have documentation from the follow-up mentioned above.

Before the employer proceeds with dismissal, a consultation meeting should also be held in accordance with Section 15-1 of the Working Environment Act. The grounds for dismissal should be discussed at this meeting, and simple minutes should be taken so that everything is documented.

The termination

Strict formal requirements apply to the termination itself in order for it to be valid. In the case of termination during the probationary period, the notice period is 14 days. The notice period is calculated from date to date and not from the end of the month, as is the case after the probationary period. In the event of termination during the probationary period, the employee is not entitled to remain in the position until the dispute regarding the validity of the termination has been resolved.

Do I need a lawyer?

As an employer, it is easy to make mistakes. There are strict procedural rules and formal requirements. When mistakes are made, it can often be expensive. Therefore, it is good advice to use a labor lawyer as a sparring partner. It is much cheaper than making mistakes.

For employees, a lawyer can easily check whether the employer has fulfilled all requirements, or whether it would be wise to demand negotiations.

Audun Lillestølen, Lawyer (H)

The author of this article is a lawyer with the right to appear before the Supreme Court. He has worked with labor law for more than 20 years.