Probationary period: what employers must know — and usually do not

Service page: Unlawful dismissal: when, what you are entitled to and how to sue.

What is “allowed” and what is “not allowed” during a probation period?

An employer does not have to give reasons for a dismissal during probation. That is the part people know. But there is a part people do not know: even during probation there are rights that cannot be waived, and a dismissal for improper motives is against the law, whether it is during probation or not.

Rights that apply from the first day, also during probation

• Minimum wage: there is no discount for a probation period. It applies from the first day, without exception.
• National Insurance Institute (Bituach Leumi): the employer must report and pay from the first day of work.
• Advance notice: for a monthly-salaried employee, one day for each month of work in the first six months, and after that 6 days plus two and a half days for each month until the end of the year (section 3); for an hourly or daily-paid employee, one day for each month of work in the first year (section 4). According to case law, this cannot be waived in the contract.
• Pregnancy protection: a pregnant employee who has worked for the employer for at least six months may be dismissed only with a permit from the Minister of Labor, which will not be given if the dismissal is related to the pregnancy (section 9(a) of the Women’s Employment Law, 5714-1954 (חוק עבודת נשים, התשי״ד-1954)); and at any seniority, dismissal because of pregnancy is prohibited discrimination (section 2 of the Employment (Equal Opportunities) Law).
• Sick pay: the entitlement accrues from the start of work, one and a half days for each full month of work (section 4 of the Sick Pay Law); for the first day of illness there is no payment, for the second and third days half, and from the fourth day full payment (section 2). An employee who is absent because of illness during their entitlement period may not be dismissed (section 4A).

A numerical example: a monthly-salaried employee is dismissed at the end of 3 months of probation: the advance notice is 3 days, one day for each month (section 3(1) of the Advance Notice of Dismissal and Resignation Law). If the probation was extended and she is dismissed at the end of 9 months: 6 days plus two and a half days for each of the seventh to ninth months, that is 6 + 2.5 × 3 = 13.5 days (section 3(2)); for an hourly employee with the same seniority, 9 days, one day for each month (section 4(1)). An employer who waives the actual work during the notice period pays the regular wage for it (section 6(a)). At the end of 3 months the employee has accrued 4.5 sick days, one and a half days for each month (section 4(a) of the Sick Pay Law); on days of absence because of illness within this entitlement she may not be dismissed, unless the advance notice was given before she was absent, or the workplace stopped operating, or the employer was declared bankrupt or a winding-up order was issued against it (section 4A(b)).

When will a dismissal during probation end up in the Labor Court?

An employer who dismisses an employee during probation for an improper motive risks a lawsuit. The prohibited motives include: pregnancy, illness, age, sex, nationality, disability, testifying in legal proceedings, and exercising a legal right. The Labor Court is not impressed by the label “probation period” when it sees a dismissal with suspicious timing.

Red flag: an employee who asked about the terms of employment, asked for the minimum wage, or mentioned that they belong to a protected group, and was dismissed within days. Even without a “reason for dismissal” document, the court may draw conclusions from the timing.

What is the right step before a dismissal during probation? Before you dismiss an employee during a probation period, do three things: make sure there is a written employment contract that sets an express probation period. Document the reasons for ending the employment, and not verbally. Give advance notice as the law requires, and pay it.

Can a probation period be extended? Yes, usually with the consent of both parties, and it is advisable to put the extension in writing. The law has no general provision on the length of a probation period or on extending it, so the terms are set in the contract, in the collective agreement or in the applicable extension order. Important: an extension does not give the employer extra “freedom” to dismiss; the restrictions on dismissal also apply in the extended period.

Extending a probation period: when is it allowed?

• Express written consent of both parties
• When there is a significant change in the role (and no decision has yet been made on permanent status)
• Periods of absence (illness, reserve duty): whether they count toward the probation period depends on the contract and on the applicable agreement; absence for reserve duty is not considered a break in the continuity of employment (section 41A(a) of the Discharged Soldiers (Reinstatement in Employment) Law, 5709-1949 (חוק החיילים המשוחררים (החזרה לעבודה), התש״ט-1949))