The 180-Day Probation Period: How to Draft the Probation Annex Correctly

The Maximum: 180 Days, No More

Under the amended Labor Law (Articles 53 and 54), the probation period may be up to a maximum of one hundred and eighty days. The parties may not agree on a period exceeding this cap, and any clause that conflicts with it is void as to the excess. For probation to be valid in the first place, it must be stated expressly and in writing in the employment contract or in an annex to it.

• A written clause is required: there is no implied probation, so if the contract is silent there is no probation period.
• The maximum is one hundred and eighty days, and the parties may agree on a shorter period suited to the nature of the role.
• Any period beyond 180 days has no effect, and the employee is deemed confirmed once the statutory cap lapses.

Probation Is Not Repeated With the Same Employer

An employee may not be placed under probation more than once with the same employer for the same job. If the employee passes probation or is rehired into the same role, no new probation period may be imposed. An exception applies where the parties agree in writing to a new probation period upon hiring the employee for a job different from the previous one, or after a period of not less than six months has passed since the end of the prior relationship, as the law provides.

• Same job with the same employer: probation cannot be repeated.
• A different job: a new probation period may be agreed in writing.
• Splitting probation across successive contracts to circumvent the cap is a flawed practice that may be treated as evading the law.

What Does Not Count Toward Probation

Certain days of work stoppage are not counted within the probation period, since probation is meant to assess actual performance. The Eid al-Fitr and Eid al-Adha holidays and the Hajj leave are not counted, and sick-leave days are not counted where the parties agree. The practical result is that probation effectively extends by these days so that the assessment is completed over a genuine period of work.

• The Eid al-Fitr and Eid al-Adha holidays are not counted within probation.
• Hajj leave is not counted within probation.
• Sick-leave days are not counted where the agreement so provides.

It is advisable to state this exclusion expressly in the probation annex to avoid disputes over its end date.

The Right to Terminate During Probation

During probation, either party, the employer or the employee, may terminate the employment contract without prior notice, without an end-of-service award, and without compensation, unless the contract contains a clause granting the affected party compensation upon termination during probation. This right is mutual, and exercising it within its statutory limits is not arbitrary dismissal.

• No prior notice is required from either party upon termination during probation.
• No end-of-service award is due for the probation period on its own.
• No compensation is due for termination during probation unless agreed otherwise in writing.
• The employee's actual entitlements remain due: wages for days worked, and any accrued leave allowance.

Termination should be documented in a written letter stating that it occurred during probation and its date, to preserve evidence in case of any later dispute.

Drafting the Probation Annex Correctly

1. State the probation period clearly in days, not exceeding 180 days, and give its start date.
2. Provide that the Eid al-Fitr and Eid al-Adha holidays, Hajj leave, and sick leave are not counted within the period.
3. Set out each party's right to terminate during probation without notice or compensation, or specify the compensation if you agree on it.
4. Confirm that probation is not repeated with the same employer for the same job.
5. Sign the annex by both parties and attach it to the employment contract as an integral part of it.

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