The ZDR-1 stipulates that an employer may not terminate the employment contract (serve notice of termination) of an employee during pregnancy, of an employee who is breastfeeding a child up to one year of age, and of parents during the period when they are taking parental leave (maternity leave, paternity leave and parental leave) in the form of full absence from work in a consecutive series, and for one month after the leave has been taken. During this period and in these cases, the employer may not do anything that would otherwise be necessary to terminate the contract of employment or to recruit a new employee. However, the special protection against dismissal for parents and pregnant workers does not apply if there are grounds for extraordinary dismissal (with the prior agreement of the Labour Inspector) or for the opening of proceedings for the dissolution of the employer. The above protection for these categories of workers therefore also applies in the case of unsuccessful probationary work.

The ZDR-1 has introduced a number of changes in the area of probationary work. Under the previous regime, unsuccessful completion of probationary work was a ground for extraordinary termination of the employment contract, which, in conjunction with Article 115, meant that the employer could terminate the employment contract of a pregnant worker on the grounds of unsuccessful completion of probationary work, subject to the prior consent of the labour inspector. However, the failure to successfully complete the probationary period is now a ground for regular termination of the employment contract (new Article 89(1)(5)), with the employee being entitled to seven days' notice (Article 94(1)). In this respect, the wording of Article 115 has not changed as regards the protection of parents against dismissal or termination of the employment contract.

In my opinion, the latter is completely "unviable" for the employer, since in such a case the employer cannot actually make use of the already agreed probationary work (even more problematic is the situation where such circumstances would have existed at the time of the conclusion of the contract, but the employee would have concealed them). The same opinion is also shared by the Head of the Legal, Human Resources and General Affairs Department of the Chamber of Commerce and Industry, who states in an expert article: "There is no case law on the protection of pregnant workers and parents in the event of unsuccessful probationary work, but in my opinion, according to the purpose and logic of probationary work and the fact that the contract is concluded on a terminable basis, it would not be logical to protect these categories of workers from termination of their contracts for unsuccessful probationary work." It should be noted that the assessment of probationary work would be based on the actual performance of the employee and would not be based on the fact that she is pregnant or for any of the other reasons mentioned above. In the event that the probationary employee is negatively evaluated and one of the above categories applies, the employer would have no choice but to have an employee on the payroll who is not performing his/her job adequately or in accordance with the employer's expectations. The latter situation is absurd and leads to the abolition of the agreed probationary work.

In view of the purpose of probationary work and the encouragement of employers to conclude contracts of indefinite duration, I propose to the Government that regular dismissal for failure to complete probationary work be reinstated as an exception and included among the grounds where the special protection of protected categories against dismissal does not apply (i.e. Article 115(5) of the ZDR-1).