You may have a new employee in mind and want to let them ‘try out’ the job for a few days or ‘shadow’ someone for a day to get an initial impression before entering into an employment contract.
Tests/work experience placements
If this ‘trial period’ / ‘work experience’ takes place without an employment contract having been concluded for this period, you, as an employer, run the risk that this period may be regarded as an initial employment contract. This is particularly the case if remuneration (other than an expense allowance) is paid.
Incidentally, there is also case law which states that the ‘trial period’ or ‘work experience’ period may be classified as an employment contract even if no remuneration is paid. Furthermore, if a prospective employee spends a day ‘shadowing’, they are, in principle, not insured in the event that they sustain an injury on that day. Moreover, this work experience period cannot be classified as voluntary work, as strict conditions apply to such work (including that the work must be in the public interest or serve a specific social purpose, and that the work must be non-profit).
Statutory probationary period
The legislator’s intention was to prevent potential employees from simply spending a day ‘trying out the job’ or ‘shadowing’ someone, whether or not they are paid for it; that is, after all, what the statutory probationary period is for.
As an employer, you must therefore bear in mind that if you allow someone to ‘work on a trial basis’ or ‘shadow’ staff, an employment contract may well come into effect very quickly. This can lead to a situation where, if the employee is offered a fixed-term employment contract after the work experience period, this constitutes a second employment contract and the period during which the employee ‘worked’ prior to that also counts towards the probationary period.
In total, you may enter into three fixed-term employment contracts with a maximum combined duration of three years. Allowing a probationary period can therefore mean that, from a legal perspective, the first fixed-term employment contract is actually already the second fixed-term employment contract. The resulting risk is that, if you as an employer assume you can still enter into a third fixed-term contract, it may in fact be deemed to be a contract of indefinite duration.
You should therefore use the statutory probationary period as an opportunity to get to know the employee, and only allow them to start work once the employment contract has been signed.