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HIGHLIGHT OF JURISPRUDENCE # 6 - JUNE 2021 | EMPLOYEES LOOKING FOR THEIR FIRST JOB

25/06/2021 Jurisprudence

Unconstitutionality of the trial period

The Constitutional Court, in its Decision No. 318/2021, of 18 May, decided to declare the unconstitutionality, with general mandatory force, of the 180-day trial period, in employment contracts for an indefinite period, applicable to workers who are in the looking for a first job, when they have previously signed a fixed-term employment contract for a period equal to or greater than 90 days with another employer.

At issue are the changes to the Labor Code, which entered into force on 1 October 2019, increasing, for example, the trial period to 180 days for employees looking for their first job and for long-term unemployed.

The Constitutional Court has now understood that the increase in the trial period violates the principle of equality and the employees’ right to job security.

Thus, in cases covered by the declaration of unconstitutionality, the trial period is reduced to 90 days. This will mean that the trial period may have already ended or will end earlier than expected, which has implications for any termination of the employment contract during the trial period (which may even constitute unlawful dismissal if the termination was made after the end of the 90-day trial period).

Without prejudice, if the employee looking for a first job has also been hired for positions of high technical complexity, high degree of responsibility or that presuppose a special qualification, or functions of trust, it appears that the 180-day period may continue to be applicable.

 

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