Layoffs in probationary period multiply with the labor reform

Casualties during the test period grew by an average of 700 % in September compared to the same month last year

Unlike dismissal, there is only the right to liquidation and settlement, which is much cheaper for the company

Despite the good omens of the effects on the labor market of the labor reform, there was one aspect that seems to have escaped the legislators.

The indefinite contract displaces as a general rule the use of the temporary to justified causes, however a study of the data warns about the appearance of a possible fraudulent way to escape its compliance: the use of the trial period in the indefinite contracts as a luck of temporary contract.

Monthly average of sick leave for not exceeding the trial period of Social Security affiliates with an indefinite contract, since 2020. Source Ministry of Inclusion, Social Security and Migrations

Various unions warned about this circumstance, since the trial period lasts, depending on the positions, between two and six months. Therefore, it is the perfect artifice to make junk contracts with an indefinite face, as denounced by the general secretary of USO, Joaquín Pérez. And this is also reflected in the data: according to Social Security, in September 2021, an average of 328.68 permanent contracts were terminated during the trial period. A year later, in September 2022, the figure rises to 2,641.77, which implies that both permanent contracts and the number of casualties for this reason have multiplied by 7.

According to article 14.3 of the Workers' Statute, the figure of withdrawal within the trial period allows the employer to terminate the employment relationship with the worker without cause that justifies its end and without compensation. Unlike dismissal, in this case the worker is only entitled to receive liquidation and settlement, which is much cheaper for the company.

The rapid implementation of the labor reform, and the fact that companies have not had time to establish a different hiring strategy, may have led them to find an emergency solution such as hiring while necessary and firing before it passes the trial period, although it cannot be said that it is a general practice.

Businesses may face penalties

But to what extent are these practices legal? The termination of the contract during the trial period is regulated in the Workers' Statute and, as such, its use is valid for both the company and the worker, that is, either party could withdraw without cause and without notice.

But on the other hand, it has certain limits specified by both the Constitutional Court and the Supreme Court, which, among other issues, state that its use "may not entail discrimination or violation of fundamental rights." For this reason, prior advice is recommended when terminating a contract so as not to fall into grounds for nullity.