Permanent Position Promised – Dismissal in Bad Faith: Higher Labour Court of Düsseldorf on the Probationary Period (3 SLa 317/24)

In its judgment of 14 January 2025 (3 SLa 317/24), the Higher Labour Court (Landesarbeitsgericht, LAG) of Düsseldorf held that a dismissal during the probationary period can be in bad faith (treuwidrig) and therefore invalid if a binding promise of permanent employment was given beforehand. In the underlying case, a superior with decision-making authority had assured the employee shortly before the end of the probationary period that he would be kept on. Immediately afterwards, the same superior nevertheless issued a dismissal during the probationary period.

The court made clear that such contradictory conduct violates § 242 of the German Civil Code (BGB) if the employee was entitled, on the basis of the promise, to develop legitimate expectations that the employment relationship would continue. It was particularly relevant that the promise came from a person who had authority over personnel decisions and could therefore act bindingly on behalf of the employer. The employer was unable to set out any new circumstances that justified an objective change of mind between the promise and the dismissal.

The LAG emphasised that even during the probationary period, the right of dismissal may not be exercised without limits. If trust is deliberately created and subsequently disappointed, this can lead to the invalidity of the dismissal.

Anyone who gives promises of permanent employment during the probationary period must be measured against them – trust can be legally binding.