Update | The trial period – What are the innovations introduced with the Decreto Trasparenza?

Among the many innovations introduced regarding individual employment contracts, the Decreto Trasparenza (D.Lgs. n. 104 del 27/06/2022) has also highlighted the agreement relating to the probationary period.

In order to condition the finality of a given employment relationship to the verification of convenience, both for the company and for the worker, it is necessary to stipulate a specific contractual provision (so-called trial agreement). As known, in the course of the trial (during which the contractual rights and obligations are fully operational and defined), the parties may freely withdraw from the contract without prior notice and without the application of the protections provided in the event of dismissal.

What are the requirements to be met in order for this pact to be considered valid?

The trial agreement must, under penalty of nullity:

• Result from a written act and be signed by both parties;
• Be stipulated at the same time as the employment contract or, in any case, before its execution;
• Contain a specific indication of the tasks that the worker must perform and on which he will then be evaluated (also referring to the classification system of the applicable collective bargaining agreement, if this classification allows to identify a specific professional profile);
• Respect the duration

What is the maximum duration of a trial period?

Chapter III of the Decreto Trasparenza sets the duration of the trial in a maximum of 6 months, unless otherwise provided for in collective bargaining agreements: the clauses of collective bargaining agreements that provide for shorter durations therefore remain valid. Generally, in collective bargaining agreements, the complexity of the tasks has been taken into account in determining the maximum duration of the trial (for the most basic tasks the duration of the test is shorter, while for those with a higher content, it is longer).

The Decreto Trasparenza then specified that, in fixed-term relationships, the duration of the probationary period must be proportionate to the duration of the contract itself and to the type of “task to be performed in relation to employment“.

The rule introduced now, although already transposed by previous jurisprudential guidelines and some collective bargaining agreements, poses many difficulties when the collective bargaining agreement applied by the company does not indicate anything regarding the duration of the test in fixed-term relationships.

How then to identify a reasonable duration of the test in the case of fixed-term relationships?  At the moment, there is no rule or criterion to be applied that can prevent any litigation. In the light of the case studies dealt with by the case-law and the lines thus determined, we can indicate that it is necessary to:

• proceed to a “parameterization” of the duration of the test indicated in the collective bargaining agreement for contracts of indefinite duration with respect to the duration of the fixed-term contract; for example, the probationary period provided for in the collective bargaining agreement for open-ended contracts could be divided by 12, and then multiply the result by the months of duration of the fixed-term contract;
• avoid that the duration of the test, although already reduced compared to the maximum limits, can be equivalent to the duration of the fixed-term contract (in this case, in fact, you would certainly risk the consequences of the nullity of the trial agreement, but you could even face a declaration of nullity of the affixing of the term to the employment contract itself).

The same precautions should then also be applied in relation to part-time working relationships.

Is it possible to reduce or increase the duration of the test established by law? Is it possible to renew or extend the relevant agreement?

As a general rule, it is considered that establishing a duration of the test longer than the limit dictated by law or by the collective bargaining agreement puts the worker in an unfavorable position; therefore, in the agreement stipulated between the parties, the terms provided for by collective bargaining agreement for the duration of the test can only be reduced.

Agreeing on a longer duration of the test than the limit established by the collective bargaining agreement will be possible only if the longer test is necessary due to the complexity of the tasks entrusted: in that case, it is considered that, in practice, the increase in the duration of the test is more favorable for the worker.

As clarified in the Decreto Trasparenza regarding fixed-term contracts, the test cannot be repeated in the event of renewal of an employment contract for the performance of tasks already covered by the worker in previous employment relationships: the employer has already had the opportunity to verify the professional skills, behavior and personality of the worker. The rule, already applied in jurisprudence, should preserve the exceptions already identified by the judges: it will therefore be possible to agree on an additional probationary period if:

• The new employment relationship relates to different tasks;
• An “appreciable period of time” will have elapsed compared to the previous employment relationship;
• Between one employment relationship and another, the context will have changed: social, work, the professional skills of the worker, his health conditions and lifestyle habits, the company organization …

The probationary period is, however, extended in proportion to the period of absence of the worker caused by unforeseen events that do not allow the completion of the test as interruptive of the relationship such as illness, accident, compulsory maternity or paternity leave which extend, by law, in an amount corresponding to the duration of the absence, the duration of the probationary period.

What are the consequences if a trial agreement is affected by nullity?

If a trial agreement does not meet the criteria indicated above for the purposes of its validity, or if the worker is assigned to tasks other than those indicated in the agreement, the same is to be considered null and void.

It follows that the employment relationship will be considered definitively constituted from its inception, for the duration and under the conditions laid down in the employment contract. The employer who wants to terminate the employment relationship before the end of the term will therefore have to apply the discipline relating to dismissals (with consequent need of motivation and recognition of the protections granted to the worker).

If, on the other hand, the Judge finds that the withdrawal has been anticipated with respect to the expiry of the probationary period, so as to suspect that the test has not actually been completed, the worker will be entitled to finish the test or to have an indemnity corresponding to the remaining period.

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The entry into force of the Decreto Trasparenza and the need to proceed with new hires, is an opportunity to review the content of individual employment contracts. The trial agreement is one of the clauses on which particular attention must be paid, as its correct drafting determines the possibility of withdrawing from the employment relationship, without too many problems, if one of the parties realizes that it would not be convenient to commit definitively, even if only for a fixed term. So, watch out for the drafting of this particular clause.