The issue of practical importance arising for employers out of the ECJ’s decision in Nisttahuz Poclava v Ariza Toledano, is not that it had no jurisdiction to decide whether the lack of legal protection against dismissal for an employee during a one year probationary period was valid, but its ruling that a probationary period did not amount to a 12-month fixed-term contract for the purposes of the EU Fixed-term Work Directive.

The primary aim of the EU Fixed-term Work Directive is to prevent discrimination against fixed-term workers. In the annex to the Directive, Clause 3(1) states that a “fixed-term worker” means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event. Ms Nisttahuz Poclava’s contract simply stated that her probationary period would be one year. The ECJ held that it follows from the Directive’s definition of a ‘fixed-term worker’ that Ms Nisttahuz Poclava’s employment contract cannot be categorised as a fixed-term contract. The ECJ then went on to clarify that a probationary period is designed to check a worker’s aptitude and skills, whereas a fixed-term employment contract is used if the end of the employment contract or relationship is determined by objective conditions.

While this clarification from the ECJ is very helpful, nevertheless, a ‘contract is a contract’ representing the terms agreed by the parties and as many employers make use of probationary periods, they are advised to check the contractual wording very carefully to make sure that on any reading, it cannot expressly or impliedly be creating a ‘contract within a contract’, for example, by guaranteeing a minimum period of employment.

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