China: Extending the probation period? - Don't be so capricious

Last Updated: 24 June 2015
Article by Linda Yanling Liang and Wen Qin

Ms. Li was first employed by Company A as Chief Financial Officer on November 29, 2012. The two parties had signed a three-year employment contract, the term of which is from November 29, 2012 to November 28, 2015, and the probation period is from November 29, 2012 to January 28, 2013. The Company and Ms. Li agreed in the Offer Letter that, the Company is entitled to extend the probation period based on Ms. Li's performance during that period. On January 16, 2013, the Company conducted a performance evaluation on Ms. Li, and the result showed that the Company needed to extend Ms. Li's probation period for another one month. Ms. Li had no objection to this decision and the Company extended her probation period to February 28, 2013. When the extended probation period was about to expire, the Company conducted another performance evaluation on Ms. Li, which showed that Ms. Li's performance was unsatisfactory. Meanwhile, taking Ms. Li's fake education credentials, frequent lateness and serious absenteeism into consideration, the Company terminated the employment relationship with Ms. Li on February 23, 2013 in accordance with Article 39 (1) of PRC Employment Contract Law. According to this Article 39 (1), if the employee is proved as having failed to meet the recruitment requirements during the probation period, the employer is entitled to dismiss him/her.

Ms. Li refused to accept the Company's decision and filed for arbitration to the Labor Dispute Arbitration Commission. She claimed that the Company should pay her economic compensation for wrongful termination. During the arbitration stage, the Commission deemed the termination as wrongful. In response, the Company filed a lawsuit to the first-instance court challenging the award. The first-instance court held that, an employer may agree on only one probationary period with the same employee, and it was illegal for the Company to extend the probation period. Upon termination, Ms. Li should have passed the probation period and become a regular employee, but the Company had still used the ground of "failing to meet the recruitment requirements in probation period" as the termination ground to dismiss Ms. Li. Such termination is in violation with PRC law. The Company refused to accept the judgment and appealed to the second-instance court. The second-instance court sustained the original judgment.

In this case, the key issue was the agreement and extension of the probation period. The following two issues arising from this case worth our special attention:

  1. Could the Company be capricious to extend the probation period?

In practice, we have observed two ways to extend the probation period. The first way is to extend the probation period to a term longer than the statutory maximum. For instance, for a one-year employment contract with two month probation, the employer further extends the probation period for another one month. Such extension is void even if the employees have recognized such extension in writing, because it violates the statutory maximum requirements on probation period.

The second way to extend the probation period is shown in this case. The Company and Ms. Li had signed a three-year employment contract, under PRC law, they may agree on a probation period up to six months. However, the Company had initially proposed a two-month probation period, then extended it for another one month based on the actual situation. The total probation period after extension was still within the statutory maximum for the term of probation period. Is this type of extension valid? Our answer remains no. That's because Article 19 of PRC Employment Contract Law stipulates that, "an employer may agree on only one probationary period with the same employee" .We are of the view that, the extension of the agreed probation period may be deemed as another agreement on probation period, thus violating the mandatory provision of Article 19 of PRC Employment Contract Law. Even though the extended probation period does not exceed the statutory maximum, it will not be deemed as a legal and valid amendment to the employment contract, and should be considered void.

Why the law is not supportive towards extending the probation period? The reason is that, the law intends to protect the employees' rights and interests during probation period. For employees on probation, many employers will not grant them with full wage as regular employees; in addition, employers may legally dismiss them during probation period by invoking the termination ground of "failing to meet the recruitment requirements during probation", which may result in greater uncertainty on their employment relationship. By stipulating "an employer may agree on only one probationary period with the same employee", the law wants to prevent the employer from damaging the employees' interests by taking advantage of the employer's strong position in employment relationship, and repeatedly lengthening the probation period to use the employees' work force in a more flexible and economic way. Therefore, the extension of probation period should not be done in bad faith.

In conclusion, we suggest that when setting the probation period for employees, employer should not rely on the future possible extension of probation period which may be done based on the employees' actual performance. Instead, employers should fully consider the capability of the employees and fix the term of probation period within the scope allowed by law. For employees with unsatisfactory performance during probation, the employer should conduct a performance evaluation and inform them of the result before the expiry of the probation period. For employees proved to have failed to meet the recruitment requirements, the employer may dismiss them based on Article 39 (1) of PRC Employment Contract Law.

  1. Is it fine to end the employees' probation in advance based on their excellent performance?

In practice, for employees with excellent performance, we have also seen many employers would like to shorten their probation period voluntarily or upon the employees' request. Will such kind of conduct be deemed as another agreement on probation and thus be void? We do not think so. That's because shortening the probation period through consultation will not create a second probation period. Such shortening is an amendment to the existing probation period and is beneficial to the employees' interests. Therefore, we are of the view that such shortening is legal and valid.

In light of the above, the employer needs to note that, once the employer has agreed to shorten the probation period for the employees, the shortened probation period needs to be obeyed when dealing with the employment of the employees. Even if the employees' performance become unsatisfactory after the shortening of probation period, if the shortened probation period has expired, the employer is not allowed to terminate the employees' employment based on the ground of "failing to meet recruitment requirements during probation".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.