Probation period when changing jobs - when is it legal?

The renegotiation of a probationary period upon a change in an employee's position is common in practice, especially in cases of career advancement or internal reorganization within the enterprise. For the employer, this is a way to verify the employee's fitness to perform new tasks that are more complex or different in nature.

For the employee, however, this clause appears quite different. A probationary period implies the possibility of terminating the employment contract without notice, without stating reasons, and without the right to protection against dismissal. Therefore, the law and case law establish clear boundaries as to when such an arrangement is permissible.

The Principle of a Single Probationary Period

The Labor Code contains a principled restriction: for една и съща работа, с един и същ служител, в the same work, with the same employee, in the same enterprise, an employment contract with a probationary period cannot be concluded a second time.

The purpose is clear – to prevent abuse of the employer's right to terminate the employment relationship under a simplified procedure. Once the employer has verified the employee's fitness for a given job, they cannot "test" it again and again.

Admissibility of a New Probationary Period upon a Material Change in the Labor Function

According to established case law, a new probationary period is lawful only when there is a material change in the employee's labor function – for example, transitioning to a completely different position with different requirements, responsibilities, and nature of work.

The key word is material. It is not sufficient:

to merely change the job title;
for there to be minor differences in the job description.

The difference between the old and the new position must be real and significant.

When is the Clause Invalid?

Some of the most frequent situations in which the renegotiation of a probationary period is impermissible:

The new position combines functions from previous positionsfor which the employee's fitness has already been verified.
The differences in the job descriptions are not material – on paper it looks like a different position, but in practice the work is the same or similar.
Some of the duties are dropped while the rest remain – this in itself does not constitute a material change in the labor function.

If the new position does not differ materially from the previous one, the arrangement for a new probationary period is is invalid.The court views this as circumvention of the law and abuse of rights – because the employer has already had the opportunity to verify the employee's fitness for this work.

Practical Guidelines for Employers

Before including a probationary period clause upon a change of position, ask yourself the question: is the new position really different in terms of labor functions – – or only in title?

A few things to keep in mind:

You must be able to provethat the new position requires new skills and responsibilities that were not part of the employee's previous work.
Any formal reassignment without a real change in the nature of the work, but with a probationary clause, carries a serious legal risk..
Upon a change in the labor function and the negotiation of a new probationary period, the explicit written consent of the parties is always required.

In Conclusion

A probationary period upon a change of position is neither prohibited nor automatically permissible. It all depends on whether the new job is genuinely different in terms of labor functions – and this assessment is made based on the job description, not just the title. An incorrect assessment may result in an invalid clause and vulnerability in the event of a labor dispute.

Upon a change in the labor function and the negotiation of a new probationary period, the explicit written consent of the parties is always required.

If you are unsure whether it is possible to include a probationary period clause when changing an employee's position, or if you need assistance in preparing the necessary documents, please contact KGK Law Firm.