Extension of probationary period in the event of absence: calculation in calendar days
The trial period is a crucial phase in the employment contract, enabling the employer to assess the employee’s skills. If an employee is absent during the trial period, specific rules apply for extending the probationary period.
What is the extension of the trial period in the event of absence?
Prolongation of the trial period is the automatic extension of its initial duration when the employee is absent. This legal mechanism, provided for in article L. 1221-21 of the French Labor Code, is designed to guarantee the employer an effective evaluation period equivalent to that contractually agreed. In practical terms, the trial period is “paused” during the employee’s absence, then resumed on his or her return. This rule applies automatically, without requiring the employee’s agreement, as soon as the absence is noted. It applies to all employment contracts with a trial period, whether permanent or fixed-term. For example, for a 2-month probationary period, an absence of 10 calendar days brings the period to 2 months and 10 days.
The extension does not constitute a new trial period, but simply an extension of the initial period, retaining the same legal characteristics. The employer thus has the necessary time to assess the employee’s professional aptitudes under normal working conditions. Social and payroll management issues call for particular rigor in the application of these provisions, to avoid any disputes.
The principle of calculation in calendar days
Calendar days refer to all days in the calendar, including working days, weekends and public holidays. This method of calculation differs from working days, which exclude Sundays and public holidays, or weekdays, which also exclude Saturdays. For example, an absence from work from Monday March 3 to Friday March 14 represents 12 calendar days (including 2 weekends), but only 10 working days. This distinction is crucial to the correct calculation of the applicable extension.
The French Labor Code requires the use of calendar days to calculate the extension of the trial period, a method confirmed by consistent court case law. This rule guarantees uniform application and avoids ambiguities of interpretation. In concrete terms, an absence of 10 calendar days extends the trial period by 10 calendar days, regardless of how these days are distributed over the week. The calculation begins on the first day of absence and ends on the day the employee actually returns to work. Certain collective bargaining agreements may provide for specific information procedures, without however modifying the calculation method itself.
A miscalculation can have major legal consequences for the employer. If the employer terminates the probationary period after its actual end date, the termination is requalified as a dismissal without real and serious cause. The employee can then claim damages before the industrial tribunal, generally ranging from 1,500 to 6,000 euros, depending on seniority and the harm suffered. Beyond the maximum legal duration, the trial period automatically becomes a permanent contract, depriving the employer of his right to simplified termination. Rigorous calculation is therefore an absolute legal imperative.
Absences justifying an extension
All absences by the employee during the trial period justify an extension, whatever their nature. Sick leave is the most common type of absence. This includes work stoppages due to ordinary illness, occupational illness or workplace accident. A concrete example: a sick leave of 8 calendar days automatically extends the trial period by 8 calendar days, regardless of whether or not the employee receives compensation. Even a single day’s absence due to illness results in an extension of one calendar day.
Statutory leave can also be extended. These include leave for family events (marriage, birth, death), leave for professional training and absences authorized by the employer. Even a day’s paid leave taken during the probationary period extends the probationary period by the same amount. Maternity leave deserves special attention: if an employee becomes pregnant during her probationary period and is granted maternity leave, this extends the probationary period by its full duration in calendar days. For partial absences, such as half a day’s absence, the calculation is made on a pro rata basis: half a day’s absence extends the probationary period by half a day.
Unjustified absences also automatically extend the probationary period if it continues. However, the employer has a choice: either he accepts the extension and continues to assess the employee, or he immediately terminates the probationary period due to the unjustified absence. If the employer opts to continue the employment relationship, the extension is automatically applied according to the same rules of calculation in calendar days as for any other absence.
How to calculate the extension
The extension is calculated using a simple formula: duration of absence in calendar days = duration of extension in calendar days. If an employee is absent from March 5 to 14 inclusive, i.e. 10 calendar days, the trial period is extended by 10 calendar days. When several absences follow one another, each extends the trial period by its own duration. For example, for an initial trial period of 3 months, if the employee is absent for 2 weeks (14 calendar days) then 1 week (7 calendar days), the total extension is 21 calendar days.
The extension is added to the initial trial period. For a two-month trial period ending on April 30, an absence of 15 calendar days pushes the end to May 15. The calculation must take into account all calendar days, without distinction between days worked and days not worked. When the new end date falls on a Saturday, Sunday or public holiday, the trial period effectively ends on that day, with no postponement to the next working day. The principle of calculation in calendar days applies in full, including for determining the term of the extended period.
Nevertheless, the law sets maximum trial periods, including renewals: four months for blue-collar and white-collar workers, six months for supervisors and technicians, eight months for managers. According to established case law, these maximum periods do not include extensions due to the employee’s absence. In other words, extensions resulting from absences are added to the legal maximum periods without exceeding them. However, if the initial trial period and any renewals exceed these legal ceilings, the trial period automatically ends when the authorized maximum expires. This has major legal consequences: the contract is transformed into a permanent contract, and the employer is unable to freely terminate the employment relationship. Any subsequent termination must follow the procedure for dismissal with real and serious grounds.
Employer formalities and obligations
The employer must inform the employee of the extension of the trial period. Although the law does not stipulate any particular form, written notification is the best way to secure the process and avoid any subsequent disputes. This written notification proves that the employee has been duly informed of the extension and its terms.
This information must be given within a reasonable timeframe, ideally at least 48 hours before the date initially scheduled for the end of the trial period. The notification must include several essential details: the exact duration of the absence in calendar days, the start and end dates of the absence, the number of calendar days of extension applied, and the new trial period end date. For example: “Following your absence from March 5 to 14, 2024 (10 calendar days), your trial period initially scheduled to run until April 30 is extended by 10 calendar days and will end on May 10, 2024.”
Notification can be delivered by hand against a receipt, or sent by registered letter with acknowledgement of receipt. Hand delivery offers the advantage of immediate notification, while registered mail provides proof of a definite date. The employer chooses the method of transmission best suited to his situation, taking care to keep a written record of this formality.
The employment contract or letter of engagement may stipulate specific information requirements. Some collective bargaining agreements impose specific formalities concerning notification of extension, or set maximum trial period durations lower than the legal ceilings. Employers should check the collective bargaining provisions applicable to their sector of activity. In the event of termination during the extended trial period, the employer must respect the statutory or contractual notice period, failure to do so rendering the company liable to pay compensation to the employee.
Legal consequences and risks of litigation
An error in calculating the extension period can have significant legal consequences. If the employer terminates the probationary period after it has expired, this is considered to be a dismissal without real and serious cause. The employee can then claim damages before the industrial tribunal, the amount of which generally varies between 1 and 6 months’ gross salary, depending on seniority, the harm suffered and the circumstances of the termination. Case law establishes that the employer bears the burden of proof: it must demonstrate the reality of the absences and the accuracy of the calculation made.
The courts rigorously monitor compliance with extension rules. The French Supreme Court has confirmed on several occasions that exceeding the maximum duration of the trial period transforms it into a permanent contract (Cass. soc., January 11, 2012, no. 10-23.493). The employer then loses the right to freely terminate the contract, and must comply with the standard dismissal procedure. Judicial statistics show that between 15% and 20% of trial period disputes result from miscalculations in the extension of the trial period.
In the event of a dispute, the employee has 12 months from the date of termination to contest the employer’s calculation before the industrial tribunal. It is then up to the employer to demonstrate the reality and duration of the absences justifying the extension. Keeping documentary evidence (medical certificates, absence letters, attestations) is essential to secure the employer’s position. For complex disputes, it may be necessary to call on the services of an expert in conflict resolution.
Employers must also take care not to discriminate against employees on the grounds of their absence. A termination motivated primarily by the absence itself, rather than by an observed professional shortcoming, may be requalified as discrimination. The French Supreme Court regularly sanctions such practices (Cass. soc., February 3, 2010, no. 08-44.978). It would be prudent to document precisely the reasons for any termination during or after the extended trial period, focusing exclusively on professional skills and performance.
Given the complexity of these rules, and the associated legal risks, it is in companies’ best interests to seek specialist legal advice. Rigorous management of trial period extension in the event of absence protects the employer while guaranteeing the employee’s rights. Scrupulous compliance with the calculation in calendar days is the key to a secure employment relationship from the outset.
Frequently asked questions
Extending the trial period in the event of an employee’s absence raises a number of practical questions for employers. Here are the answers to the most frequently asked questions concerning the calculation in calendar days and the application of this rule.
What is the extension of the trial period in the event of absence?
Extending the trial period in the event of absence means automatically extending the initial trial period to compensate for the employee’s absence. This extension enables the employer to make a real assessment of the employee’s professional skills over the planned period. The calculation is made in calendar days, i.e. counting all days, including weekends and public holidays. This rule applies irrespective of the reason for absence, be it illness, industrial accident or authorized leave.
How do you calculate the extension of the trial period in calendar days?
Calculation in calendar days involves extending the probationary period by a number of days equal to the total duration of the absence. For example, if an employee is absent for 10 calendar days during a two-month probationary period, the probationary period will be extended by 10 calendar days. All consecutive days of absence must be counted, from the first to the last day inclusive, without distinguishing between working days and weekends. This calculation method, validated by jurisprudence, guarantees full compensation for the absence and enables a complete evaluation of the employee.
What absences extend the trial period?
Any absence on the part of the employee, for whatever reason, can be used to extend the probationary period. This includes ordinary sick leave, industrial accidents, occupational illnesses, leave for family events, and even absences authorized by the employer. Paid leave taken during the probationary period can also be extended if the employer so wishes. The only condition is that the absence must actually prevent the employee from being assessed. The employer must, however, inform the employee of this extension and of the new trial period end date.
What is the legal basis for extending the trial period in the event of absence?
The extension of the probationary period in the event of absence is based on the case law of the French Supreme Court (Cour de cassation). Although the French Labor Code does not explicitly provide for this possibility, judges have confirmed that the employer may extend the probationary period by the equivalent duration of absences. This jurisprudential solution is based on the very purpose of the trial period: to enable an effective assessment of professional skills. Calculation in calendar days has been validated by several rulings, and is now a recognized and legally secure practice.
How do you formalize the extension of the trial period with the employee?
The employer must inform the employee of the extension of the trial period in writing, ideally by hand-delivered letter or by registered letter with acknowledgement of receipt. This notification must specify the duration of the absence, the number of calendar days of extension, and the new trial period end date. It is advisable to complete this formality as soon as possible after the employee’s return. This written communication constitutes essential proof in the event of a dispute, and demonstrates the employer’s transparency in managing the contractual relationship.
What are the most common errors in calculating the extension?
The most common error is to calculate the extension in working days instead of calendar days, which leads to an underestimation of the duration. Some employers also forget to include weekends and public holidays in the calculation. Another common mistake is not formally informing the employee of the extension, creating legal uncertainty. Finally, some employers extend the trial period beyond the legal maximum, which can be contested. It is essential to document each absence precisely, and to communicate clearly with the employee.