Applicable rule
In principle, the termination of the trial period at the employer’s initiative does not have to be justified. However, it may not be based on a discriminatory ground, such as health . The termination of the probationary period on such a ground is void. But what are the compensatory consequences of such nullity?
Facts
An employee hired at the end of December 2013 was placed on sick leave from 13 January to 17 August 2014. On 22 July, the employer notified her of the end of her Trial period, effective 18 August. Considering herself to have been the victim of discrimination related to her health condition, the employee claim the nullity of the termination of employment.
Procedure
After her claim was dismissed by the first instance judge, the employee lodged an appeal.
On appeal, the employer was ordered to pay the employee the sum of €5,000 for abusive termination. The employee then filed an appeal before the French Supreme Court, notably seeking the application of the compensation regime applicable to null dismissals (i.e. compensation of at least six months’ salary).
Decision of the French Supreme Court
In a ruling dated 25 June 2025, the French Supreme Court held that “an employee whose probationary period termination is void on discriminatory grounds is not entitled to the compensation provided for in cases of null dismissal, but only to reparation for the damage resulting from the nullity of that termination”. Thus, the French Supreme Court confirms the principle that the rules applicable to the termination of an open-ended employment contract do not apply to the trial period.
The employee may, however, obtain compensation based on the damage actually suffered as a result of this unlawful termination.
Scope
In this decision, the French Supreme Court reminds that discrimination can be recognised even during the trial period. However, the compensatory effects attached to nullity remain limited: the minimum indemnity of six months’ salary provided for in cases of null dismissal does not apply, even if the termination of the trial period is discriminatory. Only the actual harm suffered as a result of the termination can be compensated.