Changes to the Probationary Period under the 2025 "Flexi-Amendment" to the Czech Labour Code
The amendment to the Czech Labour Code, often called the "flexi-amendment," is expected to take effect on June 1, 2025. It introduces several changes to employment relationships. One significantly affected area is the regulation of the probationary period, specifically Section 35 of the Labour Code. These changes respond to practical demands and aim to increase the contractual freedom of the parties while maintaining employee protection. They also clarify some previous interpretative ambiguities.
Let's take a closer look at the key changes regarding the probationary period.
Extension of the Maximum Probationary Period Length
The most significant change increases the maximum permissible length of the probationary period. The new rules are:
- For regular (non-managerial) employees, the amendment extends the maximum length from 3 months to 4 months.
- For managerial employees, the amendment extends the maximum length from 6 months to 8 months.
The new wording of Section 35(2) states: "A probationary period may not be agreed for a period longer than a) 4 consecutive months from the date of commencement of the employment relationship, b) 8 consecutive months from the date of commencement of the employment relationship for a managerial employee."
The Explanatory Memorandum states that this extension aims to enhance the parties' contractual freedom. It allows them to better verify whether the employment relationship suits them mutually. This change responds to practical demands. It is a compromise solution intended to continue protecting employees from excessively long periods of uncertainty. The new regulation aligns with the EU Directive on transparent and predictable working conditions.
The restriction for fixed-term employment relationships remains in place. According to Section 35(3): "A probationary period may not be agreed for longer than half of the agreed duration of the fixed-term employment relationship." This rule remains unchanged; it merely applies to the new, longer maximum limits.
Possibility of Subsequent Extension of the Agreed Probationary Period
A fundamental novelty is the possibility to subsequently extend an already agreed probationary period. The previous regulation explicitly prohibited this. The new Section 35(4) states: "A probationary period may be subsequently extended during its term within the limits of paragraphs 2 and 3 by written agreement between the employer and the employee."
To extend the period, the following conditions must apply:
- The employer and employee must conclude a written agreement.
- They must conclude the agreement during the term of the originally agreed probationary period.
- The total length of the probationary period (original + extension) must not exceed the statutory maximum (4/8 months). It also must not exceed half the duration of a fixed-term employment relationship.
This change allows the parties to react more flexibly to the situation. For example, suppose a 2-month probationary period was initially agreed. The parties can now agree to extend it to 3 or 4 months if they feel the need for further "testing" of the relationship. It also allows extending the probationary period up to 8 months. This applies if an employee becomes a manager during the period and the original probationary period was shorter.
Clarification of Automatic Probationary Period Extension
The amendment clarifies the rules for automatically extending the probationary period by the time the employee did not work. The previous regulation (former § 35(4)) mentioned extension by "the period of full-day obstacles to work" ("dobu celodenních překážek v práci") and "the period of full-day leave" ("dobu celodenní dovolené"). This wording led to interpretative ambiguities, such as whether to count calendar or working days and how to handle partial absences.
The new wording of Section 35(5) states more clearly: "The probationary period is extended by the employee's working days during which they did not work their entire shift during the probationary period due to an obstacle to work, taking leave, or unexcused absence."
Key Changes to Automatic Extension Rules
This leads to the following clarifications:
- Parties calculate the extension in working days (days for which the employee had a scheduled shift), not calendar days.
- Extension occurs only if the employee missed the entire shift for the specified reasons. Partial absences (e.g., a doctor's visit for a few hours) do not lead to an extension.
- Newly, the probationary period is also extended for days of unexcused absence if the employee missed the entire shift.
- The Explanatory Memorandum explicitly addresses public holidays. It states that the probationary period is not extended for holidays on which the employee's shift was cancelled due to the holiday (so-called paid public holiday).
- Consider if an employee misses an entire shift due to a combination of reasons (e.g., half a day obstacle to work, half a day leave). This day now counts towards the extension under the new rules.
Example Calculation
Example from the Explanatory Memorandum: An employee has a probationary period from January 1 to April 30, 2025. During this time, they missed 5 entire shifts due to illness (obstacle to work) and 2 entire shifts due to taking leave. Their probationary period will be extended by a total of 7 working days. If the period was supposed to end on April 30, 7 working days are counted starting from May 1. This count includes any public holidays that fall on a working day (like May 1 and May 8 in the example), as these are not skipped. The probationary period would thus end on Friday, May 9, 2025.
Agreeing on the Probationary Period
The amendment slightly adjusts the wording regarding the timing of the agreement and the written form, but the core principles remain essentially the same:
- According to Section 35(1): "A probationary period may be agreed at the latest on the day of the commencement of the employment relationship..." (The previous wording referred to "the day agreed as the day of starting work" or "the day stated as the day of appointment"). This change aligns the wording with Section 36 of the Labour Code, which defines the commencement date.
- It remains mandatory that according to Section 35(1): "The probationary period must be agreed in writing." Without written form, the agreement on a probationary period is invalid.
- The amendment confirms that parties can also agree on a probationary period in connection with an appointment to a managerial position.
Conclusion
The amendment to Section 35 of the Labour Code brings several significant changes effective from 2025. Extending the maximum probationary period length and allowing its subsequent extension by agreement provide employers and employees with more flexibility. At the same time, the amendment clarifies the rules for the automatic extension of the probationary period due to employee absences. This contributes to greater legal certainty. It is important for both employers and employees to familiarize themselves with these changes. This will help them correctly set up and interpret probationary period conditions in new and existing employment relationships.
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