Probationary Period in Spain: Maximum Duration and Your Rights

🇪🇸 Read the original in Spanish

When we sign a new employment contract in Spain, it is common for the first clause that catches our attention to be the one relating to the probationary period. This legal mechanism, designed so that both the company and the worker can assess the suitability of the employment relationship, often generates uncertainty and situations of abuse due to a lack of knowledge of the law. Understanding your rights during this initial phase will not only protect you against arbitrary decisions by the employer, but will also allow you to manage your professional career with the security of knowing that Spanish legislation in the BOE (Official State Gazette) protects your employment stability from the very first minute.

What is the probationary period and where is it regulated?

The probationary period is a space of time agreed upon in writing between the employer and the worker during which either party can terminate the employment relationship unilaterally, without the need to allege any cause, without prior notice, and without the right to severance pay.

In the Spanish legal system, the backbone of this concept is found in *Article 14 of the Real Decreto Legislativo 2/2015, de 23 de octubre, por el que se aprueba el texto refundido de la Ley del Estatuto de los Trabajadores** (Royal Legislative Decree 2/2015, of October 23, approving the consolidated text of the Workers' Statute Law, hereinafter referred to as the Estatuto de los Trabajadores* or ET).

For a probationary period to be fully valid, it must strictly comply with two formal requirements:

1. Written agreement: It must be expressly stated in the employment contract. A verbal agreement is not valid, nor is it assumed by the mere fact of starting the activity. If it is not signed in writing before or at the moment of starting work, the probationary period is null and void, and the worker is considered an ordinary permanent employee from day one.
2. Submission to legal limits: The agreed duration cannot exceed the limits set by the applicable Convenio Colectivo (Collective Bargaining Agreement) or, in its absence, by the subsidiary limits established by the Estatuto de los Trabajadores itself.

Maximum duration of the probationary period according to the Workers' Statute

The duration of the probationary period is not established arbitrarily by the employer. *Article 14.1 of the Estatuto de los Trabajadores*** determines that the provisions of the collective bargaining agreements will apply. However, in the event that the applicable agreement does not regulate this matter, the law sets insurmountable supplementary maximum limits:

• *Qualified technicians (técnicos titulados): A maximum of 6 months*. Qualified technicians are understood to be those workers who have been specifically hired by virtue of their university degree or higher-level vocational training to perform functions inherent to said qualification.
• Other workers (non-qualified): A maximum of 2 months. This category includes administrative staff, service personnel, laborers, etc.
• Companies with fewer than 25 workers: For workers who are not qualified technicians, the maximum limit can be extended up to 3 months.

Special rules for temporary and training contracts

The labor reform introduced even stricter limits to prevent the abuse of the probationary period in short-term contracts:

• Temporary fixed-term contracts: If the contract is concluded for a duration of no more than 6 months, the probationary period cannot exceed 1 month, unless the collective bargaining agreement provides otherwise.
• *Training contracts (contratos formativos): In the training contract to obtain professional practice appropriate to the level of studies, the probationary period cannot exceed 1 month*, unless the sectoral collective bargaining agreement establishes another duration.

Can the probationary period be interrupted?

Yes. *Article 14.3 of the Estatuto de los Trabajadores** establishes that situations of temporary disability (incapacidad temporal* or medical leave), birth, adoption, guardianship for the purpose of adoption, fostering, risk during pregnancy, risk during breastfeeding, and gender violence, interrupt the calculation of the probationary period, provided that there is an explicit written agreement between both parties (company and worker) for this to be the case.

If such an agreement exists, the days the worker spends on medical leave, for example, will not count towards the limit of the probationary period, resuming the calculation once they return to work.

Your rights and obligations during the probationary period

There is a false belief that during the probationary period the worker lacks rights. This is absolutely false. A worker on probation has exactly the same rights and obligations corresponding to the job position they hold as if they were on the permanent staff, with the sole exception of those arising from the termination of the employment relationship.

Full labor rights

• Salary: You have the right to receive the full salary stipulated in the collective bargaining agreement for your professional category or that agreed in your contract. You cannot be paid less for being "on trial".
• Social Security: The employer is obliged to register you with the Seguridad Social (Social Security) from the very first day of work (before the start of services). Working during a probationary period without being registered is a serious infringement of the Ley sobre Infracciones y Sanciones en el Orden Social (Law on Infringements and Sanctions in the Social Order or LISOS).
• Contributions: This period counts towards seniority in the company, contributions for retirement, and entitlement to future unemployment benefits (paro).
• Risk prevention: You have the right to receive personal protective equipment (PPEs) and the necessary training regarding occupational health and safety.

Practical examples of applying the limits

To better understand how these limits operate in the reality of the Spanish labor market, we analyze two common scenarios:

Example 1: The case of Carlos (Software Engineer)

Carlos is hired as a Software Engineer (a position requiring a university degree in engineering) by a multinational technology company. The applicable Convenio Colectivo says nothing about the probationary period. His employment contract establishes a probationary period of 8 months.

• Legal analysis: Since Carlos is a qualified technician, the maximum limit established by the Estatuto de los Trabajadores in the absence of regulation by agreement is 6 months.
• Result: The clause setting 8 months is null and void for exceeding the legal maximum. If the company decides to terminate Carlos's contract at 7 months alleging "failure to pass the probationary period", it will be considered an unfair dismissal (despido improcedente) or null dismissal, depending on the case. Carlos will have the right to the corresponding severance pay or reinstatement, since legally he had already passed the maximum probationary period of 6 months.

Example 2: The case of Laura (Shop Assistant)

Laura signs a temporary contract of 5 months as a shop assistant in a clothing store of an SME with 10 workers. Her contract stipulates a probationary period of 2 months.

• Legal analysis: As this is a temporary contract with a duration of less than 6 months, the Estatuto de los Trabajadores limits the probationary period to a maximum of 1 month.
• Result: Laura's actual probationary period is 1 month, despite what is signed in her written contract of 2 months. If the company dismisses her alleging failure to pass the trial 6 weeks after starting, it will be a dismissal without cause (unfair), and they must pay her the corresponding severance of 33 days' salary per year worked, pro-rated.

Practical steps in case of contract termination during the probationary period

If the company or you decide to end the employment relationship during the probationary period (legally referred to as desistimiento or withdrawal), a series of formal steps must be followed to ensure everything is done in accordance with the law:

1. Written communication: Although the law allows for verbal termination, it is essential for both parties that it is done in writing. The company must hand over a letter stating the "failure to pass the probationary period" (no superación del periodo de prueba). The worker should sign it as "not in agreement" (no conforme) along with the date and time of receipt to safeguard their rights to claim.
2. *Calculation and delivery of the settlement (finiquito): The company must make the settlement document (finiquito*) available to the worker. This must obligatorily include:

• The days worked in the current month that have not yet been paid.
• The proportional part of the extra payments (pagas extraordinarias) accrued and not received.
• Accrued holidays that the worker has not taken (which are subject to Social Security contributions).

1. Registration with the SEPE (if applicable): The company must send the company certificate (certificado de empresa) to the Servicio Público de Empleo Estatal (State Public Employment Service or SEPE) indicating the cause of the termination ("failure to pass the probationary period").
2. Applying for benefits: If the worker has accumulated at least 360 days of contributions in the last 6 years, they can apply for unemployment benefit, provided that the termination of the probationary period was initiated by the company. If the worker is the one who voluntarily withdraws, they will not be in a legal situation of unemployment and cannot apply for unemployment benefits immediately.

Mistakes you should avoid

• Accepting a probationary period if you already worked in the company: *Article 14.1 in fine of the Estatuto de los Trabajadores** is clear: "any agreement establishing a probationary period shall be null and void when the worker has already performed the same functions previously in the company, under any type of contract"*. If you re-enter a company to do the same job, there is no valid probationary period.
• Confusing the worker's withdrawal with dismissal: If you are the one who decides to leave during the probationary period, you have no right to severance pay, nor do you place yourself in a legal situation of unemployment to collect benefits. Think carefully before taking this step if you do not have an immediate alternative job.
• *Signing the settlement (finiquito) with releasing effect without reviewing it: If you are notified of the failure to pass the probationary period, always sign by writing in your own handwriting the words "No conforme"* (Not in agreement) next to your signature. This will allow you to claim judicially if you detect errors in the calculation of the settlement or if you suspect that the company's decision hides a violation of fundamental rights.
• Ignoring the deadlines for claims: If you consider that the failure to pass the probationary period is actually a disguised or null dismissal (for example, due to being pregnant or on temporary medical leave), the expiration deadline to file the conciliation petition (papeleta de conciliación) and the subsequent lawsuit is only 20 business days (excluding Saturdays, Sundays, and public holidays) from the effective date of the termination, in accordance with the Ley Reguladora de la Jurisdicción Social (Law Regulating Social Jurisdiction or LRJS).

Frequently Asked Questions (FAQ)

Am I entitled to severance pay if I do not pass the probationary period?

No. Spanish legislation determines that the termination of the employment relationship during the probationary period does not generate a right to any severance pay for either party. You are only entitled to receive the settlement (finiquito), which includes the salary for the days worked, untaken holidays, and the proportional part of the extra payments.

Can they terminate my probationary period if I am pregnant?

Maternity protection is a fundamental right. *Article 14.2 of the Estatuto de los Trabajadores*** expressly establishes that the termination of the employment relationship during the probationary period at the employer's request is null and void in the case of pregnant workers, from the start date of the pregnancy until the start of the contract suspension period for birth, unless there are reasons unrelated to the pregnancy and these are sufficiently proven. Therefore, if you are dismissed while pregnant without a very clear objective cause unrelated to your condition, the termination will be declared null by the courts.

What happens if the probationary period set in my contract exceeds what the Collective Bargaining Agreement says?

What is dictated by the Convenio Colectivo of your sector always prevails, as the Estatuto de los Trabajadores acts as a framework of minimums and delegates specific regulation to collective bargaining. If your contract sets a probationary period longer than that of the applicable agreement, that contractual clause is null and void, and the limit of the agreement applies instead.

If I decide to leave during the probationary period, do I have to give 15 days' notice?

No. One of the essential characteristics of the probationary period is the freedom of mutual withdrawal. Both you and the company can terminate the employment relationship immediately, at any time, and without the need for prior notice, unless otherwise expressly agreed in the employment contract (which is extremely rare).

In summary

• The probationary period must obligatorily be agreed in writing in the employment contract; otherwise, it does not legally exist.
• The general maximum duration limits are 6 months for qualified technicians and 2 months for other workers (3 months in companies with fewer than 25 employees), unless the Convenio Colectivo improves these terms.
• During the probationary period, the worker enjoys full labor rights, including registration with the Social Security and receiving the agreement salary from day one.
• A probationary period cannot be established if the worker has already performed the same functions previously in the same company.
• The termination of the contract for not passing the trial does not generate a right to severance pay, but it does give the right to receive the corresponding settlement (finiquito).
• If the company terminates the contract of a pregnant worker during the trial, the decision will be null unless causes completely unrelated to the pregnancy are proven.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.