Analysis of the legal regime of the probationary period of fixed-term employment when accessed from a position of career or fixed-term employment staff

Last Updated: February 2026

The consultation relates to the functioning of the probationary period of a fixed-term contract staff when the person concerned already holds a position as a career officer or as a fixed-term contract staff at the time of such recruitment.

It should be noted, in advance, that the present explanation regarding the probationary period refers exclusively to permanent working personnel included in the scope of application of the Fourth Single Collective Agreement for Working Personnel of the General State Administration (hereinafter, CUAGE).

Article 32 of the CUAGE regulates the probationary period for permanent staff, establishing the following (emphasis added):

“1. The newly admitted staff shall be subject to a probationary period, which shall be agreed in writing in the employment contract, for a period of three months for professional groups M3 and M2 and one month for other workers, except for unqualified staff, for a period of fifteen working days.

2. Once this probationary period has elapsed, the admission will be automatically formalized, and the worker will be informed of this period for all purposes. The acquisition of the status of permanent staff within the scope of this Convention shall be subject to the completion of the aforementioned probationary period.

3. During this period, both the Administration and the worker may terminate the employment relationship, without any of the parties being entitled to any compensation. The person will have the rights and obligations corresponding to his professional group and the job he performs, as if he were a staff member. The end of the labor relations regulated in this article will be reported to those who represent the workers.

4. The agreement establishing a probationary period shall be null and void when the person has already performed the same functions previously, under any mode of recruitment, within the scope of this Convention.

5. During the probationary period the worker shall not have the right to be declared in the situations provided for in Title XIV of this Convention, except for those for which there is no requirement to meet the status of permanent employment. In these cases, you must complete and exceed the probationary period once you join the reserved position as a result of the declaration of the corresponding situation.”

Likewise, article 14 of Royal Legislative Decree 2/2015, of 23 October, approving the consolidated text of the Law on the Status of Workers, indicates in similar terms what is of interest here:

“2. During the probationary period, the worker shall have the rights and obligations corresponding to the job he/she performs as if he/she were a staff member, except those derived from the resolution of the employment relationship, which may occur at the request of any of the parties during the course (...).

3. Once the trial period has elapsed without the withdrawal, the contract will produce full effects, computing the time of the services provided in the seniority of the worker in the company.”

That is, the trial period does not break the fixed nature of the contractual relationship, it only introduces a conditional continuity solution limited to a set period of time.

For its part, the judgment of the High Court of Justice of Castilla-La Mancha, (Social Division, Section 2), Judgment No. 698/2021 of 29 April, has pointed out the following:

“As is evident from the aforementioned precepts, the employment contract has all its legal effects from the moment of its conclusion, (it will have the rights and obligations corresponding to the job it performs as if it were a staff member), with the sole exception that any of the parties may proceed to resolve it unilaterally, without any formal requirement, during the agreed probationary period, unless such decision violates any fundamental right (TS 2 April 2007 (RJ 2007, 3193), rec. 5013/2005).

The diction of art. 14.3 of the ET "After the trial period without the withdrawal, the contract will produce full effects,..." can only be interpreted in the sense that, after the trial period, the possibility of unilateral resolution disappears, but in no way can it be concluded that, during that trial period, the employment contract was in a kind of legal limbo, during which the worker was deprived of other rights, outside the aforementioned exception (the possibility of unilateral resolution), as stated in the judgment of instance, to deny the worker the right to request the leave due to incompatibility provided for in the convention.

It is true that the diction of art. 35.2 of the collective agreement is confusing, when it says that "After this trial period the admission will be automatically formalized ...", but a systematic interpretation of the rules of the agreement confirms the above."

From the reading of the judgment, it can be deduced that the acquisition of the status of permanent workforce is subject to exceeding the probationary period, This does not imply that the worker is not a fixed workforce since the signing of the contract. That is to say, it is not a temporary workforce that becomes fixed with the expiration of the trial period, but the expiration of the trial period is a necessary condition for the acquisition of such a condition.

In relation to the incompatibility, the same judgment goes on to state the following:

“(…) certain situations of leave may be requested without the need for any previous period, not even the one derived from the trial period (…).

The same applies to excess due to incompatibility. So the art. 52 of the convention, on this matter, refers to the legislation on incompatibilities of personnel in the service of public administrations; and art. 10 of Law 53/1984, of 26 December, on Incompatibilities of Personnel in the Service of Public Administrations, establishes that: "Those who, by virtue of any title, gain access to a new position in the public sector which, under this Act, is incompatible with the position they have been performing, shall opt for one of them within the term of taking office."

Therefore, the worker’s decision to apply for leave due to incompatibility at the time of taking possession and signing of the new employment contract, for having chosen to maintain another job, is in accordance with the rules that regulate such leave. The effect that this produces with respect to the job in which the leave is obtained is that if the worker subsequently requests his re-entry (art. 57 of the agreement), must complete the remaining trial period ( TS 23 October 2008, rec. 2423/2007 and 20 January 2014, rec. 375/2013).”

Likewise, Article 92 on incompatibilities regulated in the CUAGE states that “the rules contained in the legislation on incompatibilities of personnel in the service of Public Administrations shall apply to the personnel affected by this Convention.”

Consequently, Law 53/1984, of 26 December, on incompatibilities of personnel in the service of Public Administrations, Royal Decree 598/1985, of 30 April, on incompatibilities of personnel in the service of the State Administration, Social Security and Entities, Agencies and Dependent Companies, and other rules contained in the legislation on incompatibilities of personnel in the service of Public Administrations, is applicable.

This application is consistent with Article 2.2 of the same standard, which provides that: “The scope defined in the preceding paragraph shall be understood to include all staff, whatever the legal nature of the employment relationship.”

In addition, paragraph 3 states that “in any event, the performance of a job by personnel falling within the scope of this Convention shall be incompatible with the exercise of any public or private office, profession or activity which may impede or impair the strict performance of their duties or compromise their impartiality or independence.”

In this ‘Incompatibilities Act’, Article 10 provides as follows: “Those who, by virtue of any title, gain access to a new position in the public sector which, under this Law, is incompatible with the position they have been performing, shall opt for one of them within the term of taking office. In the absence of an option within the indicated period, it will be understood that they opt for the new position, moving on to the situation of voluntary leave in which they have been performing. In the case of posts subject to compatibility, subject to prior authorization, they must request it within the first ten days of the aforementioned term of office, this being understood to be extended insofar as resolution is required.”

In this way, a mandatory period of option is established for those who, occupying a post in the service of the Administration, access another incompatible post, without the legislation on incompatibilities establishing any requirement regarding the prior acquisition of the full status of permanent working personnel. Consequently, the conventional rule should be interpreted in a manner consistent with this legislation, which is applicable regardless of the legal nature of the employment relationship.

In conclusion, on the one hand, the probationary period does not break the indefinite nature of the employment relationship of which it brings cause and, on the other, it will have to analyze what legal figure fits in this situation by differentiating between whether the public employed person who must overcome this probationary period is a public official or labour personnel.

Firstly, for the case of career civil servanton the one hand, the provisions of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees and Royal Decree 365/1995, of 10 March, approving the Regulations on Administrative Situations of Civil Servants of the General Administration of the State, in particular Article 15, which regulates voluntary leave for the provision of services in the public sector as follows:

“1. Career officials who are in active service in another body or scale of any of the Public Administrations, unless they have obtained the appropriate compatibility, and those who go on to provide services as permanent staff in public sector bodies or entities and are not entitled to remain in situations of active service or special services, shall be declared, on their own initiative or at the request of a party, in the situation regulated in this article. The performance of positions with the character of interim official or temporary staff will not qualify to move to this administrative situation.”

Therefore, this leave also requires that, in the case of moving to provide services as labor personnel, they are provided as fixed labor personnel, as well as that the employee should not be left in a situation of active service or special services.

There is no impediment to the application of this leave from the signing of the employment contract, including the probationary period, since the employment relationship is fixed from its inception and is not temporary in nature.

Secondly, for the workforce subject to the CUAGE, as already indicated, article 32.5 of the same prevents during the trial period access to voluntary leave due to incompatibility, since the full status of permanent working personnel has not yet been acquired.

In this sense, during this trial period, in accordance with Article 93.3 of the CUAGE referring to the ‘causes of suspension of the employment contract’, for the following reasons:

“3. Appointment of professional staff as trainee staff or for the performance of probationary periods as permanent professional staff in the field of a Public Administration. The contract of the worker or employee who, as a result of the passing of a selective process for access as career civil servants or as permanent staff of any Public Administration, is appointed or appointed as civil servants in internships or must perform a probationary period will be suspended. In any case, after the end of the selective course or the internship period, the labor personnel must be reincorporated into their work until the appointment and the taking of possession as career civil personnel in the corresponding Body or Scale. Likewise, if the probationary period as permanent staff is not exceeded, the worker must immediately return to his or her job.”

In this case, the working personnel subject to the CUAGE will be entitled, during the trial period of another work contract, to the suspension of the former with reservation of their job and computation of the period for seniority purposes in the terms set forth therein.

Finally, once the probationary period has passed, if applicable, you may apply for leave due to incompatibility in the terms provided in Article 95.4 of the CUAGE. In this case, the existence of a probationary period in the new employment relationship does not alter its fixed character, but the one subject to the condition of exceeding that period.

All of this is without prejudice to what may be established by the Joint Commission provided for in CUAGE, which has, among others, the functions of interpreting the entirety of the articles, provisions and annex of the convention.

In conclusion, the existence of a probationary period does not alter the fixed nature of the employment relationship or make it temporary, for the purposes of article 15 of Royal Decree 365/1995, of 10 March. On the one hand, career civil servants may request voluntary leave for the provision of services in the public sector provided for in article 15 of Royal Decree 365/1995, of 10 March. On the other hand, according to article 32 of the CUAGE, the acquisition of the status of permanent working personnel is subject to exceeding the probationary period. During this period, permanent staff may not apply for those situations that require full compliance with this condition, including voluntary leave due to incompatibility, and it is appropriate, in this case, to suspend the contract of employment in the terms provided in article 93 of the said conventional norm.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.