Can an Employer Dismiss an Employee During Probation Without Explaining the Reason?

The purpose of the probationary period is to allow the employer to assess whether, in practice, the employee meets the professional requirements of the position for which they were hired.

Under Article 60 of the Labour Code, the probationary period must be expressly provided for in the individual employment contract. In the absence of such a clause, the employee is deemed to have been hired without a probationary period.

If the outcome of the probationary period is unsatisfactory, Article 63(2) of the Labour Code allows the employer to issue a dismissal order before the expiry of the probationary period, without paying a severance allowance. The law expressly provides that the employer is not required to give reasons for its assessment that the probationary period was unsatisfactory. The employee may, however, challenge the dismissal before a court.

At first sight, this rule appears to give the employer very broad discretion: it is sufficient to determine that the probationary period was unsatisfactory and to issue the dismissal order before that period expires.

The Constitutional Court’s Decision, however, shows that the matter is more nuanced.

On 6 August 2026, the Constitutional Court examined two objections of unconstitutionality concerning precisely the rule that allows an employer not to provide reasons for an unsatisfactory outcome of the probationary period.

From a procedural standpoint, the Court declared the referrals inadmissible. Nevertheless, the Court’s reasoning contains important clarifications regarding the application of Article 63(2) of the Labour Code.

The Court confirmed that the employer is not required to state in the dismissal order the specific reasons why it considers that the employee did not successfully complete the probationary period.

However, the Court added an essential limitation: this prerogative is not discretionary and may not be exercised arbitrarily. The probationary period may be used to assess the employee’s professional abilities. It may not be used to conceal a discriminatory dismissal, to penalise an employee for reasons unrelated to their professional abilities, or to circumvent other safeguards provided by labour legislation.

In other words, there is an important distinction between the obligation to state the reason in the dismissal order and the obligation to have a genuine and lawful reason for the dismissal.

A one-page dismissal order stating only that the outcome of the probationary period was unsatisfactory may formally comply with the requirements of Article 63(2) of the Labour Code.

The situation changes, however, if the employee challenges the dismissal.

The Court drew attention to Article 89(2) of the Labour Code, under which, in an individual labour dispute, the employer must prove the lawfulness of the dismissal and indicate the grounds for terminating the employment relationship. Among other things, the court may verify whether the probationary period was lawfully established, whether the dismissal order was issued before its expiry, and whether the simplified procedure was used for discriminatory purposes or to conceal a ground for dismissal prohibited by law.

The court will not substitute its own assessment for that of the employer and will not itself decide whether the employee is professionally “good” or “poor”. The Court acknowledged that the employer has a certain margin of discretion when assessing the employee’s practical professional abilities.

However, that margin does not exclude judicial review of whether the dismissal was lawful and non-abusive. Accordingly, for an employer, the statement “I do not have to give reasons in the dismissal order” should not be confused with “I do not have to be able to explain or substantiate the decision”.

From a legal risk-management perspective, the prudent approach is to ensure that the assessment made during the probationary period can later be reconstructed, even though the law does not require a formal evaluation report for every employee.

Before issuing the dismissal order, the employer should verify at least the following:

• whether the probationary period was expressly and lawfully established in the individual employment contract and whether the employee may lawfully be subject to such a period under Articles 60–62 of the Labour Code;

• whether the probationary period has not expired and whether any periods that are excluded from its duration have been properly taken into account;

• whether the employer’s concerns genuinely relate to professional abilities, performance, quality of work, fulfilment of assigned tasks, or the employee’s ability to perform the position;

• whether there are documents or other evidence capable of supporting the assessment, such as assigned tasks, results, professional correspondence, feedback, reports, identified errors, or other objective elements;

• whether the dismissal takes place in circumstances that could indicate discrimination, retaliation, or another reason unrelated to professional assessment;

• whether the dismissal order is in fact issued before the expiry of the probationary period and contains the correct legal basis.

The Constitutional Court clarified that the law does not require the employer to follow an evaluation procedure as formal as the one applicable to professional inadequacy after the probationary period has expired. Indeed, flexibility is one of the functions of the probationary period.

If litigation subsequently arises, this may make the difference between a managerial decision that can be explained and a dismissal that, viewed from the outside, appears arbitrary.

The Court’s Decision is also relevant for employees.

The mere fact that the dismissal order does not contain detailed reasons does not, in itself, make the dismissal unlawful. There are, however, situations in which the procedure and the actual circumstances surrounding the termination of employment should be examined more carefully.

For example, issues may arise where the probationary period was not stipulated in the employment contract, where the dismissal order was issued after the probationary period had expired, where the employee had consistently received positive feedback or bonuses and was then suddenly dismissed following a conflict with the employer, or where there are indications that the true reason for dismissal may have been discriminatory or retaliatory.

One of the disputes underlying the Constitutional Court’s Decision is particularly relevant from this perspective: the employee argued that, during the probationary period, no objections had been raised regarding her work and that she had even received financial bonuses for the results achieved.

Therefore, in litigation, the court may not necessarily limit itself to the formal wording of the dismissal order. The circumstances in which the decision was taken may become important when assessing its lawfulness.

Constitutional Court Decision No. 134 of 6 August 2026 confirms the flexible nature of the probationary period, but it does not turn dismissal into an arbitrary right of the employer.

The employer may refrain from explaining in the dismissal order why it considers the outcome of the probationary period unsatisfactory. However, if the decision is challenged, the employer must be prepared to demonstrate the lawfulness of the dismissal and that the procedure was not used for a discriminatory, abusive purpose or for a reason unrelated to the employee’s professional assessment.