You are handed a letter that says: “You have not passed the probation period.” And suddenly you are out of work, with no explanation and no severance. If you are in that situation, do not let it slide: you can write to Fernanda Vargas on WhatsApp or book an appointment on Calendly. In these cases, time matters a lot.
Let’s look at it through Lucas’s story. He is 27, Venezuelan, lives and works legally in Spain, and started at a distribution company in Zaragoza as a warehouse worker. He first spent three months on a temporary contract. After that, the company offered him a permanent contract for the same position, with a six-month probation period. In the fourth month, he took three weeks of sick leave due to a back injury. A few days after returning, his supervisor handed him a letter: “You have not passed the probation period.” Nothing else. No reasons. No severance.
To know whether that letter is valid or not, there are three questions that change everything: was the probation period agreed in writing? Did it comply with the legal limit or the limit under the collective bargaining agreement? Had Lucas already done that same job at the company before? If one of those answers fails, you may not be dealing with a real probation period, but with a dismissal that can be challenged.
“You Have Not Passed the Probation Period”: The Letter Lucas Receives
Lucas’s company acted as if everything were simple: you are on probation, you are not a good fit, it is over. This is called withdrawal: ending the contract during a valid probation period, without having to give a reason and without severance.
But that idea only works if the probation period was genuinely valid. And that is where Lucas’s problems begin. Because it is not enough for the letter to use those words. You have to look at what he had signed, how long that probation lasted, and whether he had already worked there before doing the same job.
In practice, many people stop at the wording in the letter and think they cannot do anything. That is a mistake. If the probation agreement was void, if it lasted longer than allowed, or if it had already expired, the termination is not treated as a valid withdrawal. It is treated as a dismissal and can be challenged.
What the Probation Period Is and Why It Must Be in Writing
Imagine that Lucas had started work and no one had included the probation period in the contract. Or that they had told him verbally on the first day. In that case, the company could not later use the excuse of “not passing probation.” Without a written agreement, there is no probation period.
“A probation period may be agreed in writing, subject to the duration limits that may, where applicable, be established in collective bargaining agreements. In the absence of an agreement in the collective bargaining agreement, the duration of the probation period may not exceed six months for qualified technical staff, nor two months for other workers. In companies with fewer than twenty-five workers, the probation period may not exceed three months for workers who are not qualified technical staff.”
“Any agreement establishing a probation period shall be void where the worker has already previously performed the same duties in the company, under any type of contract.”
Translated into plain language: a probation period is not presumed. It has to be agreed in writing. And not just any duration is valid. The law sets limits, and the collective bargaining agreement (convenio colectivo) may set others, so you must always also check the applicable agreement.
If you are unsure right now, your first step is very simple: find the contract and read the probation clause. If it does not exist, if it is unclear, or if it appears only in an email or a conversation, it is worth reviewing your case as soon as possible.
How Long It Can Last: The Limits Under the Law and the Collective Agreement
Let’s go back to Lucas. He was not qualified technical staff. He was a warehouse worker. And his company had 18 employees. That matters, because the law provides for a specific limit for companies with fewer than 25 workers when the employee is not qualified technical staff, unless the collective bargaining agreement says otherwise.
That is why those six months written into his permanent contract already raise a red flag. In a company like his, for a position like his, the collective bargaining agreement must be checked. If the agreement does not establish a different duration, the legal maximum is not six months.
There is another important detail. In fixed-term temporary contracts entered into for a period of no more than six months, the general rule is even shorter, unless the collective bargaining agreement provides otherwise.
This means there is no single answer for everyone. When someone tells you “the probation period in Spain is always six months,” they are giving you a half-truth. It can be, in some cases. In others, it cannot. And that difference determines whether the company could terminate you without cause or whether it has in fact dismissed you.
When It Is Void: If You Already Did That Job Before at the Company
Lucas has something even clearer in his favor. Before the permanent contract, he had already worked for three months at that same company doing the same warehouse-worker duties. That carries a lot of weight. Because the law does not allow a new probation period to be used to test again someone who has already done that same job there.
It does not matter that the previous contract was temporary and the new one permanent. The rule speaks of having previously performed the same duties in the company, under any type of contract. If you already did that job before, the probation agreement is void.
And here is one of the keys to the case. Even though Lucas’s permanent contract said “six-month probation period,” that clause does not become valid just because it is written down. If it conflicts with the law, it falls.
So in his story, there are two problems at once: he had already performed the same duties at the company and, in addition, the agreed duration did not fit the limit that had to be checked for a company with fewer than 25 workers, unless the collective bargaining agreement set something different.
Sick Leave, Leave Entitlements, and Pregnancy During Probation
Lucas thought that, since he had been on sick leave for three weeks, maybe the probation period had automatically been extended. People hear that a lot too. But it does not work that way. Sick leave does not automatically suspend the probation clock.
“Once the probation period has elapsed without withdrawal having occurred, the contract shall produce full effects, and the time during which services were provided shall count toward the employee’s seniority in the company.”
“Situations of temporary incapacity, birth, adoption, custody for the purpose of adoption, foster care, risk during pregnancy, risk during breastfeeding, or gender-based violence affecting the employee during the probation period interrupt the running of that period provided that there is agreement between both parties.”
The decisive phrase is the last one: provided that there is agreement between both parties. In other words, the calculation is interrupted only if the company and the employee agree to it. If there was no agreement, the days keep running.
That is exactly what happened to Lucas. He was on sick leave, yes. But if there was no agreement to interrupt the calculation, those three weeks do not extend the probation period. Therefore, the company cannot add that time on its own and say that he was still “on probation” beyond what actually applied.
“During the probation period, the employee shall have the rights and obligations corresponding to the job position performed as if they were part of the workforce, except those arising from the termination of the employment relationship, which may take place at the request of either party during that period. Termination at the employer’s initiative shall be null and void in the case of female employees on grounds of pregnancy, from the date the pregnancy begins until the start of the suspension period referred to in article 48.4, or maternity, unless there are reasons unrelated to pregnancy or maternity.”
This leaves two very clear ideas. First: during probation you have the rights and obligations of your position like any other member of staff. The difference lies in the way the relationship can be ended, if the probation is valid and still within time. Second: the company cannot terminate the contract because of pregnancy. In that situation, termination by the employer is null and void unless there are reasons unrelated to pregnancy or maternity. If you want to go deeper on this point, you can read when the dismissal of a pregnant worker is null and void and what to do.
With illness or sick leave, there is no automatic answer that is the same in every case. Not every period of sick leave during probation makes the termination null and void. It depends on the real reason for the termination and how that can be proven, so each situation should be assessed individually.
When “Not Passing Probation” Is Actually a Dismissal
Now you can better see what is happening with Lucas. His letter says “you have not passed probation,” but the problem is not the label. The problem is that this probation period was not valid for two reasons: because he had already performed the same duties at the company and because, in addition, the agreed six-month duration exceeded the limit that had to be checked in his case unless the collective bargaining agreement said otherwise. And his sick leave did not extend the period because there was no agreement to interrupt it.
In a situation like that, the termination does not operate as a valid withdrawal. It operates as a dismissal. And that dismissal can be challenged.
If it is declared unfair, the statutory severance is that of article 56.1: 33 days’ salary per year of service, with periods shorter than a year calculated pro rata by month. Here you can see a fuller explanation of severance for unfair dismissal in Spain.
In addition, if the real reason for the termination was discriminatory, the termination could be null and void. In Lucas’s case, if it were ultimately shown that the true reason was his sick leave and not his alleged performance during probation, that possible nullity would have to be examined very carefully.
Be careful about one thing: when the probation period is valid and has not yet ended, the company can terminate the contract without explaining the reason and without severance, except for anything the collective bargaining agreement may provide regarding notice. That does not eliminate what they already owe you for the work performed, such as salary, the proportional part of any extra payments, and accrued but unused vacation.
The Deadline You Cannot Miss: 20 Business Days
Here is the truly urgent part. Even if you are right, you can lose the ability to bring a claim if you let time run out.
“The right to bring an action against dismissal or termination of temporary contracts shall lapse twenty days after the date on which it occurred. The days shall be business days and the time limit shall be a limitation period for all purposes. The limitation period shall be interrupted by the filing of the conciliation request before the competent public mediation, arbitration, and conciliation body.”
Put simply: you have 20 business days to act. Not every calendar day counts as a business day. And that time limit is interrupted when you file the conciliation request with the competent mediation, arbitration, and conciliation body.
Lucas should not wait to see whether the company “reconsiders” its decision. Nor should he assume that, because the letter speaks of a probation period, nothing can be done. If he wants to bring a claim, he has to act within that deadline.
What Lucas Can Do Step by Step
If you see yourself in Lucas’s situation, this is the practical path to get started:
- Keep all documents. Permanent contract, earlier temporary contract, termination letter, pay slips, and any document proving what duties you performed.
- Check the applicable collective bargaining agreement. The law sets general limits, but the agreement may set a different duration for the probation period.
- Check the three key questions. Whether it was in writing, whether it complied with the limit, and whether you had already performed those same duties before at the company.
- Do not let the 20 business days pass. A dismissal claim lapses, and the conciliation request interrupts that time limit.
- If there is no agreement in conciliation, file a claim with the Labor Court. That is the next step to argue that the termination was actually a dismissal.
In Lucas’s case, the basis for the claim would be fairly clear: he had already performed the same duties at the company, the period agreed in the new contract did not fit the limit that had to be checked in his case unless the collective bargaining agreement provided otherwise, and his sick leave did not interrupt the calculation because there was no agreement. In that scenario, the “not passing probation” letter should not close the discussion: it should open it.
Checklist and Table of Maximum Durations
If you want to do a quick review of your case, start with this checklist:
- 1. Was the probation period agreed in writing? If not, there is no probation period.
- 2. Does the duration comply with the applicable maximum? You have to look at the law and, above all, the collective bargaining agreement.
- 3. Had you already performed those same duties before at the company? If the answer is yes, the agreement may be void.
And this table serves as general guidance. Remember: the collective bargaining agreement may provide otherwise, so it is never advisable to rely only on the general rule.
| Situation | General maximum duration |
|---|---|
| Qualified technical staff | 6 months, if the collective bargaining agreement does not provide otherwise |
| Other workers | 2 months, if the collective bargaining agreement does not provide otherwise |
| Companies with fewer than 25 workers: workers who are not qualified technical staff | 3 months, if the collective bargaining agreement does not provide otherwise |
| Fixed-term temporary contracts entered into for a period of no more than 6 months | 1 month, unless the collective bargaining agreement provides otherwise |
Lucas’s story ends with one very important idea: not everything a company calls a “probation period” really is one. In his case, the agreement was invalid because he had already performed the same duties and, in addition, his sick leave did not extend the period because there was no agreement. That is why that letter can be challenged as a dismissal without cause.
Frequently Asked Questions
How Long Can a Probation Period Last at Most?
It depends on the position, the size of the company, the type of contract, and the collective bargaining agreement. As a general rule, if the agreement does not provide otherwise, it may be up to 6 months for qualified technical staff, 2 months for other workers, and 3 months in companies with fewer than 25 workers for those who are not qualified technical staff. In fixed-term temporary contracts entered into for a period of no more than 6 months, the general maximum is 1 month, unless the agreement provides otherwise.
Can They Fire Me During Probation Without Giving Any Reason?
Yes, but only if the probation period is valid and has not yet ended. In that case, the company may terminate the contract without stating a reason. If there was no written agreement, if the duration exceeds the applicable maximum, if you had already performed the same duties before at the company, or if the probation had already ended, then this would not be a valid withdrawal but a dismissal that can be challenged.
Do They Have to Give Me Notice or Pay Me Anything?
In a valid probation period, termination does not require cause or severance, except for whatever the collective bargaining agreement may establish regarding notice. That said, the company must pay you for what you have already worked, including the proportional part of any extra payments and accrued but unused vacation. If the probation period was not valid, then the termination can be challenged as a dismissal.
If I Go on Sick Leave During Probation, Is the Period Extended?
Not automatically. Temporary incapacity and other situations provided for by law interrupt the calculation of the probation period only if there is an agreement between both parties. If there was no agreement, time keeps running. And if the termination is actually related to the sick leave or to a discriminatory situation, it is advisable to examine the case as soon as possible.
I Worked at That Company Before; Can They Put Me on Another Probation Period?
No, if you already performed the same duties at that company before, under any type of contract. In that case, the probation period agreement is void. That is exactly what happens in Lucas’s story.
If you have been dismissed with the explanation that “you did not pass the probation period,” do not wait to see what happens. You can write now to Fernanda Vargas on WhatsApp or book a consultation on Calendly to review your contract, the collective bargaining agreement, and the 20-business-day deadline before it is too late.