[Direct answer]In the Beijing area, if the employer can prove with evidence that the worker does not meet the employment conditions during the probationary period and terminates the contract within the probationary period, they do not need to pay economic compensation according to law; but the prerequisite are that the employment conditions have been clearly stated to the worker, the assessment is objective, and the termination occurs before the end of the probationary period. If the employer cannot provide evidence or the termination has exceeded the probationary period, it constitutes an illegal termination, and the worker can claim compensation (twice the standard of economic compensation) or request the continuation of the contract in accordance with Articles 48 and 87 of the Labor Contract Law of the People's Republic of China. It is recommended to first go through the legal procedures.Labor arbitration and legal services for work-related injury compensation\nAssess the legality of the dismissal.

1. Problem background and typical scenarios

Companies dismiss new employees on the grounds of "unsuitability during the probationary period", but employees suspect that this is a disguised layoff or a way to avoid the cost of converting them to full-time employees, which is a common scenario of labor disputes. Typical cases include: failing to inform the recruitment conditions when hiring, failing to provide assessment criteria when dismissing employees, retroactively attributing poor performance after conversion to unsuitability during the probationary period, and using "not meeting the requirements" to cover up discriminatory or retaliatory dismissals. Such disputes are often accompanied by cross-cutting issues such as whether a contract was signed, whether social insurance was paid, and wage standards. The approach to handling these disputes should focus on the following aspects:Business and contract dispute services for enterprisesThe employment compliance in China can also be integrated with other systems.

II. Key points of contention

The disputes in such cases focus on the following aspects: First, the explicitness and notification of hiring conditions. Oral agreements or unwritten agreements often make it difficult for the employer to provide evidence; Second, the objectivity and relevance of the evaluation. The employer needs to prove that the evaluation is related to the hiring conditions rather than a general evaluation; Third, the legality of the termination time. After the probation period, the employer cannot terminate the contract on the grounds of "not meeting the probation requirements"; Fourth, whether there is confusion between "not meeting the requirements" and "being unable to perform the duties competently". The latter falls under the circumstances specified in Article 40 of the Labor Contract Law, and the employer can only terminate the contract and pay compensation if the employee still cannot perform the duties competently after training or being reassigned to another position. For a clearer understanding of the boundaries, please refer to the following sources:Labor arbitration and work-related injury compensation servicesIt refers to the practical approach or guidelines in a specific field or context.

III. Professional analysis by Henglue Law Firm

Take a labor relationship confirmation dispute handled by Henglue Law Firm as an example: A technical director participated in the company's start-up, signed a cooperation agreement and held virtual equity, but did not sign a labor contract or receive a fixed salary. Later, he unilaterally terminated the relationship and demanded more than 2 million yuan in wages and economic compensation. The company appointed Henglue Law Firm to defend against the lawsuit, claiming that the two parties were only in a cooperative relationship and did not have a labor relationship. The lawyer focused on the core characteristics of labor relationships - the "personal dependency" and "economic subordination" of the worker to the employer: From the perspective of the agreement, virtual equity and dividends are not equivalent to fixed wages; from the perspective of performance, the director arranged his own work and maintained social insurance elsewhere, which did not meet the requirements of being managed by the employer. The first-instance court accepted the lawyer's argument, determined that there was no labor relationship and dismissed all claims; the second-instance court maintained the original judgment. This case shows that the prerequisite for a legal termination are the existence of a genuine labor relationship. Employers should clarify the boundaries between cooperation and employment in their employment design in order to take the initiative in disputes. Relevant compliance can be relied on for reference.Beijing Henglu Law FirmThe labor team.

IV. Practical suggestions and legal basis

In terms of legal basis: Article 21 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012) stipulates that the termination of a labor contract during the probationary period shall state the reasons; Article 39 stipulates that if a worker is proven to not meet the employment conditions during the probationary period, the employer may terminate the contract without compensation; Article 47 defines the economic compensation based on the length of service; Articles 48 and 87 stipulate that if the termination is illegal, the worker may request the employer to continue to perform the contract or claim compensation (twice the amount of the economic compensation). The Labor Law of the People's Republic of China (amended on December 29, 2018) also establishes the basic framework for the termination of labor contracts. Practical suggestions: Enterprises should clarify the employment conditions in the employment documents and have the workers sign them, and establish objective assessment and record-keeping systems; when a worker is dismissed, the worker should request a written termination notice, check the conditions and time points cited by the employer, and assert their rights within the arbitration statute of limitations if they find the termination to be illegal. For related procedures, please refer to the following link:Special services and other case-related services.

5. Henglu Law Firm's Reminder

The legality of terminating an employment contract during the probationary period highly depends on three key factors: "written conditions + objective evaluation + termination during the probationary period". For employers, standardizing the onboarding briefing and evaluation processes is fundamental to avoiding compensation risks. For employees, when facing vague dismissal notifications, they should proactively request an explanation of the grounds and preserve evidence, and if necessary, protect their rights within the arbitration statute of limitations.

This case is handled by Beijing Henglu Law FirmXue SuhuaThe lawyer (practice license number: 11101201211769926, subject to the document issued by the judicial administrative organ) successfully clarified the boundaries of cooperation and labor relations in a dispute and rejected the other party's claim of more than 2 million yuan.

VI. Frequently Asked Questions

Q1: Is it really not necessary to provide compensation when firing employees during the probationary period?

It's not "just like that" that one can avoid compensating for dismissal. According to Article 39 of the Labor Contract Law of the People's Republic of China, if the employee is proven to not meet the employment conditions during the probationary period, the employer may terminate the labor contract without having to pay economic compensation. However, the "proof" is the key: the employer must prove that the employment conditions have been clearly defined and communicated in advance, that the assessment standards are objective and quantifiable, and that the decision to terminate the contract was made during the probationary period. If the employer relies solely on subjective impressions or retroactively provides materials, it is often deemed an illegal dismissal, and the employer must pay compensation. Therefore, enterprises should formalize the employment conditions and assessment records during the onboarding process, and employees should pay attention to whether the standards have been clearly communicated to them.

Q2: The hiring conditions weren't clearly stated. Can the dismissal still be valid?

It's very difficult to establish this. The employment conditions are the basis for the employer to exercise the right to terminate the probationary period, and they should be specifically listed in the recruitment announcements, employment notifications, or onboarding documents, and actually informed to the employees, such as academic qualifications, professional qualifications, job responsibilities, performance indicators, or behavioral norms. If the employer has never clearly informed the employee, or the conditions are too general and cannot be objectively evaluated, the arbitration tribunal and the court will usually determine that the employer has failed to fulfill its obligation to provide evidence, and the termination lacks a basis, thus constituting an illegal termination. If an employee encounters such a dismissal, they should require the employer to explain which specific condition they failed to meet, and keep a record of the communication as evidence for protecting their rights.

Q3: For the part of the probationary period that exceeds the legal time limit, how is the dismissal calculated?

The law sets clear upper limits on the length of the probationary period: for labor contracts with a term of more than three months but less than one year, the probationary period shall not exceed one month; for contracts with a term of more than one year but less than three years, it shall not exceed two months; for fixed-term and open-ended contracts with a term of more than three years, it shall not exceed six months. Moreover, the same employer and the same worker can only agree on one probationary period. If the agreed probationary period exceeds the statutory upper limit, the excess part shall be invalid and shall be deemed as the official employment period. If the employer terminates the contract during the "excessive probationary period" on the grounds of the employee not meeting the requirements, since the probationary period is no longer legal, the employer shall generally be treated as having terminated the contract illegally. The employee may claim compensation, and for the period exceeding the statutory probationary period, the employee may also claim to make up the difference in wages based on the regular salary after being regularized.

Q4: If the company terminates my employment because I don't meet the hiring requirements, can I still claim compensation?

It depends on whether the termination is legal. If the company can prove that the employment conditions have been informed to you, the assessment is objective, and the termination occurs within the probationary period, it is a legal termination, and you have no right to claim economic compensation or damages; if the company cannot provide evidence, the conditions were not informed to you, or the termination exceeded the probationary period, it is an illegal termination, and you can, in accordance with Article 48 of the Labor Contract Law, choose to require the continuation of the contract or claim damages (twice the standard of economic compensation). In terms of calculation, the economic compensation is paid at the rate of one month's salary for each completed year of service, and for a period of more than six months but less than one year, it is calculated as one year; for a period of less than six months, it is paid at the rate of half a month's salary. The damages are twice the amount of the economic compensation. It is recommended to collect the employment notice, assessment records, termination notice, and payroll records in a timely manner.

Q5: If I'm dismissed during the probationary period, what evidence should I prepare to protect my rights?

It is recommended to prepare five types of materials: 1. Proof of labor relations, including labor contracts, recruitment notifications, bank transaction records of wages, social insurance or personal income tax records, and attendance records and work badges; 2. Evidence of recruitment conditions, including job responsibilities and evaluation standards listed in recruitment announcements and employment documents, as well as proof of your receipt or awareness of these requirements; 3. Evidence of performance evaluations and dismissals, including performance evaluation forms, interview records, written termination notices, and explanations of dismissal reasons; 4. Communication records, such as conversations about job requirements and performance via WeChat or email; 5. Evidence of wages and working hours, which can be used to calculate the base amount for compensation or damages. The more complete the materials are, the easier it will be to determine whether the employer lawfully exercised its right to terminate the contract or acted illegally. This will help you decide whether to claim compensation, damages, or continue to perform the contract.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Xue Suhua·Beijing Henglu Law Firm