The probation period in a Chinese employment contract is not a free trial. The duration is strictly limited by the contract term, the conditions for terminating an employee during the probation period are narrower than most foreign employers expect, and getting the probation period wrong can turn what should be a straightforward termination into an unfair dismissal claim with compensation liability.
Here’s what the law actually says, what the limits are, and how to manage the probation period legally.
The Statutory Limits
The Chinese Labor Contract Law limits the maximum probation period based on the term of the employment contract. A contract with a term of three months to less than one year can have a probation period of up to one month. A contract with a term of one year to less than three years can have a probation period of up to two months. A contract with a term of three years or more — or an open-ended employment contract — can have a probation period of up to six months.
A contract with a term of less than three months cannot have a probation period. A contract that’s limited to the completion of a specific task cannot have a probation period. A part-time employment contract cannot have a probation period.
The probation period can be shorter than the maximum — a three-year contract can have a three-month probation period, or a one-month probation period, or any period up to six months — but it cannot be longer. A contract that specifies a probation period longer than the statutory maximum is unenforceable for the excess period, and the employee is deemed to have been a regular employee — not a probationary employee — from the date the maximum period expired.
The employer and the employee can agree on only one probation period. A contract that’s renewed — the same employer and the same employee, continuing employment — cannot have a second probation period. The employer cannot extend the probation period — an extension is effectively a second probation period — even if the employee agrees to the extension. A change in the employee’s position within the same employer doesn’t create a new probation period — the probation period is attached to the employment relationship, not to the position.
The Termination Standard
An employer can terminate an employee during the probation period if the employee is proved not to meet the recruitment conditions. The legal standard is not “the employee wasn’t a good fit” or “the employee’s performance was below expectations” — the employer must prove that the employee doesn’t meet the specific, objective recruitment conditions that were communicated to the employee before the employment began.
The recruitment conditions are the requirements that the employee must meet to be confirmed in the position — the qualifications, the skills, the experience, the performance standards. The conditions must be specific and measurable, not generic and subjective. A recruitment condition that says “the employee must demonstrate good communication skills” is too vague to prove. A recruitment condition that says “the employee must complete the three-month training program and pass the written examination with a score of at least 80%” is specific and provable.
The recruitment conditions must be communicated to the employee before the employment begins — in the job advertisement, in the offer letter, or in the employment contract — and the employee must acknowledge receiving them. A recruitment condition that was not communicated to the employee can’t be used to justify a probation termination.
The employer bears the burden of proof. The employer must produce the recruitment conditions, the evidence that the conditions were communicated to the employee, and the evidence that the employee didn’t meet them. An employer that terminates a probationary employee without this evidence is exposed to a claim for unfair dismissal, and the remedy is reinstatement or compensation.
The Documentation
The probation period should be documented from the start. The employment contract should state the contract term, the probation period, and the recruitment conditions — or reference a separate document that states the recruitment conditions. The separate document — a job description, a probation period performance plan — should be attached to the contract or provided to the employee with the contract, and the employee should sign it.
The probation period assessment should be documented during the probation period. The employer should conduct at least one formal assessment — typically a mid-probation review and an end-of-probation review — and the assessment should be recorded in writing. The assessment should refer to the recruitment conditions and should note the employee’s performance against each condition. A assessment that says “the employee is performing satisfactorily” doesn’t document that the employee meets the recruitment conditions — it documents that the employee is performing satisfactorily, which is a lower standard.
The confirmation or non-confirmation at the end of the probation period should be documented. A confirmed employee receives a written confirmation that the probation period has been completed and that the employee is a regular employee. A non-confirmed employee receives a written notice of termination that states the recruitment conditions that the employee didn’t meet and the evidence supporting the non-confirmation.
The confirmation is important for the legal status of the employment. An employee who completes the probation period and continues to work — even without a written confirmation — is deemed to have been confirmed as a regular employee. The employer cannot later claim that the probation period was extended or that the employee was not confirmed. The deemed confirmation rule is automatic — it applies by operation of law, not by agreement.
The Salary During Probation
The probation period salary cannot be lower than 80% of the contractual salary for the position after confirmation, and it cannot be lower than the local minimum wage. The 80% rule is a minimum — the employer can pay the full contractual salary during the probation period, and many employers do to attract candidates.
A probation period salary that’s lower than 80% of the contractual salary is a wage violation, and the employee can claim the difference. The claim is straightforward — the employer pays 70% of the contractual salary, the employee claims the 10% difference, and the labor arbitration tribunal orders the employer to pay.
The probation period salary must be stated in the employment contract. A contract that states the contractual salary but doesn’t state the probation period salary is ambiguous — the employee can argue that the contractual salary applies from the first day of employment, including the probation period. The contract should state both the probation period salary and the post-confirmation salary, and the amounts should be consistent with the 80% rule.
The Social Insurance During Probation
The probation period doesn’t exempt the employer from the social insurance obligation. The employer must enroll the employee in the social insurance system and must pay the employer’s contributions and withhold the employee’s contributions from the first day of employment — including the probation period.
A employer that doesn’t enroll the employee in social insurance until after the probation period — “we’ll enroll you after the probation period” — is violating the social insurance law. The violation can be discovered by a labor inspection or by an employee complaint, and the employer is liable for the unpaid contributions plus a late payment surcharge and possible fines.
The probation period is also counted in the employee’s continuous service period for the purpose of calculating the statutory annual leave entitlement, the severance payment, and other employment benefits that are based on the length of service. The probation period is part of the employment period, not a separate period outside the employment.
The Practical Approach
A foreign employer in China should treat the probation period as a genuine assessment period, not as a trial period that can be terminated at will. The employer should invest the time before the employment begins to define the recruitment conditions — the specific, objective, measurable standards that the employee must meet — and to communicate them to the employee. The employer should invest the time during the probation period to assess the employee against the conditions and to document the assessment. And the employer should make the confirmation or non-confirmation decision before the probation period expires — a decision that’s made after the probation period has expired is too late, because the employee is deemed to have been confirmed.
The probation period is also the period when the employer builds the employment relationship. The employer should provide the training, the guidance, and the support that the employee needs to meet the recruitment conditions. An employer that throws the employee into the job without training and then terminates the employee at the end of the probation period for not meeting the conditions is asking for trouble — the employee can argue that the employer didn’t provide the conditions for success.
