The lack of specification of the duration of the trial period expressed as “according to agreement” It violates the worker's right to know its exact duration, making the contractual clause invalid and classifying the termination of the contract as unfair dismissal.

The appeal for the unification of doctrine is resolvedfiled against the ruling issued on November 23, 2022 by the Social Chamber of the Superior Court of Justice of Madrid (Rec. Suplication No. 679/2022), filed against the ruling dated January 28, 2021, issued by the Social Court No. 7 of Madrid (orders No. 1090/2021).

The plaintiff, Mr. Narciso, served as a security guard since August 31, 2021.The third clause of his employment contract indicated that “A trial period is established according to the agreement”.

On September 23, 2021, the company notified Mr. Narciso of the termination of his contract with the effects of the September 24, 2021, claiming that had not passed the trial period. This decision was based on article 14 of the Workers' Statute and article 13 of the State Collective Agreement of Security Companies, which establish a maximum trial period of two months for operational security personnel.

In instance, the Social Court dismissed the claim for dismissal presented by Mr. Narciso, absolving the company of the claims made. This sentence was appealed in petition before the Social Chamber of the Superior Court of Justice of Madrid, which also dismissed the appeal, confirming the lower court resolution, considering that the termination of the contract, communicated within the maximum trial period allowed (less than two months), was valid and in accordance with the applicable regulations. Therefore, he did not see any infringement in the case.

The worker, through its legal representation,filed an appeal, arguing that there was a contradiction between the appealed ruling and the reference ruling issued by the Supreme Court on December 9, 2021 (rcud. 3340/2019).

The Fiscal Ministryissued a report favorable to the worker's appeal and the Supreme Court upheld the appeal, declaring Mr. Narciso's dismissal inadmissible. The company was ordered to reinstate the worker under the same conditions or to compensate him with compensation of 119.05 euros, in accordance with the compensation of 33 days of salary per year of service, with periods less than a year being prorated by full months, up to a maximum of 24 monthly payments.

The debate focused on the validity of the trial period indicated in the worker's contract as “ according to agreement”.Both article 14 of the Workers' Statute and the State Collective Agreement for Private Security allow for trial periods of up to two months for operational personnel. 

The Supreme Court, following the already established doctrine, upheld the appeal and resolved that a trial period that does not specifically establish its duration violates the worker's rights and generates legal uncertainty. The worker has the right to have the duration of the trial period clearly stipulated in writing, and not just as a generic reference to the collective agreement.