Probation periods in China operate differently from what most foreign managers expect. The rules are specific, the maximum periods are fixed by law, and the protection against unfair dismissal applies from day one — not after the probation period ends.
The Legal Limits
Chinese labor law sets maximum probation periods based on the length of the employment contract. For a contract of three months to less than one year, the maximum probation period is one month. For a contract of one year to less than three years, it’s two months. For a contract of three years or more, or a non-fixed-term contract, it’s six months.
These are hard limits that can’t be extended by agreement. If the probation period in the contract exceeds the legal maximum, the excess is void. The employee is considered a regular employee for that period, with full termination protection.
A company can specify a shorter probation period or no probation period at all. But it can’t specify a longer one, and it can’t agree with the employee to extend the probation period beyond the statutory maximum.
One important detail: the probation period can only be set once between the same employer and employee. You can’t extend it, restart it, or impose a new probation period when the employee changes positions within the same company.
Salary During Probation
The employee’s salary during probation must be at least 80% of the agreed post-probation salary, and in any case not lower than the local minimum wage. If the agreed post-probation salary is RMB 10,000 per month, the probation salary must be at least RMB 8,000. If the local minimum wage is RMB 2,500, the probation salary can’t go below that regardless of the 80% calculation.
The employer must also pay social insurance for the employee during the probation period. There’s no exemption or deferral. The employee is entitled to all statutory benefits from day one.
Termination During Probation
This is where foreign companies most commonly get it wrong. The probation period is not an at-will employment period. You can’t terminate a probationary employee simply because they aren’t a good fit or because you changed your mind about the hire.
The employer can terminate during probation only if the employee can demonstrate that the employee doesn’t meet the recruitment conditions. This requires that the recruitment conditions were clearly specified before the employee was hired — in the job advertisement, the offer letter, or the employment contract — and that the employer can prove the employee failed to meet them.
Vague recruitment conditions won’t work. “Good communication skills” is not a provable recruitment condition. “Ability to close at least three enterprise sales contracts within the probation period” is. The conditions must be specific, measurable, and communicated to the employee before they accepted the offer.
The employer must also provide evidence that the employee was given a fair opportunity to meet the conditions. If the recruitment condition was “achieve three sales” but the employee wasn’t assigned any sales leads, the termination is unlikely to survive an arbitration challenge.
Procedurally, the employer must notify the employee in writing of the termination during the probation period, stating the specific recruitment conditions the employee failed to meet and the evidence supporting the decision. A verbal conversation followed by an HR system update is not sufficient.
The Employee’s Right to Resign During Probation
The employee can resign during probation with three days’ notice, compared to thirty days for a regular employee. This is straightforward and rarely causes disputes. The employer must settle the employee’s final pay and issue the termination certificate on the last day of work.
Practical Steps for Using Probation Effectively
Before you hire, write down the specific, measurable criteria that the employee must meet during probation. Include them in the offer letter or the employment contract. Make sure the employee acknowledges them in writing.
Create a probation assessment process. A midpoint review at half the probation period gives the employee feedback on what they need to improve and gives the employer documented evidence that the employee was informed of deficiencies and given an opportunity to improve. If you ultimately need to terminate, the midpoint review documentation is powerful evidence.
Design the probation criteria for the role, not just in general. A sales role’s criteria should relate to sales activity and results. A technical role’s criteria should relate to technical deliverables. A management role’s criteria should relate to management outcomes. Generic criteria that apply equally to every role won’t stand up to scrutiny.
