Probation Isn't a Free Pass in China: Proof Still Required

Why Probation Works Differently in China

Foreign employers often treat probation as a no-strings trial: if the arrangement is not working, the company says goodbye and moves on. In China the logic runs the other way. The employee can leave on three days' notice during probation, but the employer needs evidence and a documented process to end the contract.

Article 21 of the Labor Contract Law bars termination during probation except on the grounds in Article 39 and Article 40(1)–(2), and requires the employer to explain its reasons to the employee. The most common basis is Article 39(1): the employee is proven not to meet the recruitment conditions during probation. That one word puts the burden on the employer.

The Setup: A Six-Month Probation and a One-Line Job Description

Company B, a Singapore-based cross-border e-commerce firm, hired an operations manager in Shenzhen through an EOR: a three-year contract with a six-month probation, within the legal cap. The offer and contract came from the EOR's standard template, with only the title, salary and start date filled in.

The job description was a single line about store operations and campaign execution, and the recruitment-criteria clause read simply that the employee meets the company's job requirements. After onboarding, the manager at HQ gave a few rounds of verbal feedback on video calls. There were no written targets and no signed review records.

The Turning Point: No Criteria, No Records, a Late Notice

At the end of month five, HQ was unhappy with results and asked the EOR to let the employee go while still on probation. The EOR asked Company B for three things: written recruitment criteria, probation review records and factual evidence of non-compliance. Company B had none of them.

Cross-time-zone internal approvals then dragged on for nearly another month. By the time the termination notice went out, probation had ended days earlier. The employee filed for arbitration, claiming unlawful termination.

What Tribunals Actually Look At

The statutory test is narrow, and in practice tribunals examine the paperwork around it. In probation disputes, courts typically look at four things.

Whether the recruitment criteria were clear, specific and workable, and whether they were communicated to the employee before termination.
Whether there was a valid assessment basis and procedure, and whether the results were communicated. Employers lose over flawed probation assessments with some regularity.
Whether the termination decision and notice were made and delivered inside the probation period. Local practice varies, but once probation ends this ground generally falls away.
Whether specific reasons were given and procedure followed, including prior notice to the union where one exists.

Where Company B Went Wrong

Company B failed the first three. A template phrase about meeting job requirements proves nothing, verbal feedback is not an assessment record, and the notice arrived days late.

Legally the EOR, as employer of record, answered the claim. Under the service agreement the cost flowed straight back to Company B, which is the part of the arrangement most clients only read after something has gone wrong.

What the Mistakes Cost

The three routes out of a probation hire are not priced equally.

A well-documented, procedurally sound probation termination: no severance owed.
A termination without sufficient evidence or proper procedure: damages at double the statutory severance (2N), or a reinstatement claim the employer has to defend.
A negotiated mutual termination: typically a reasonable payment in exchange for a signed release, and the most controllable route.

The Arithmetic Nobody Budgets For

For an employee with six months to a year of service, N is one month's salary, so 2N is two months. On paper that looks survivable. Add months of arbitration, legal fees, an unfilled role and management time, and the number that matters is no longer the settlement figure.

It is also worth separating capability from paper. A manager who genuinely was not suitable still wins if the file cannot show what the standard was and when it was missed.

What to Do Instead

The fix happens before the new hire starts, not in the last week of probation.

Write specific criteria and communicate them in writing. Put measurable targets into the offer, the job description or a signed annex. An agreement that sets only a probation period with no contract term means the probation is not legally established, and generic wording about meeting company requirements is as good as blank.
Run written probation reviews. Set 30, 60 and 90-day goals, give written feedback the employee acknowledges, and keep the emails and records. Verbal feedback does not count.
Plan the timeline early. Start the final assessment at least three to four weeks before probation ends, leaving room for HQ approval, time-zone delays and delivery of the notice.
State the reason and keep proof of delivery. Name the specific criteria not met and the facts behind it, and retain delivery records.
If the evidence is thin, do not force a failed-probation termination. A negotiated exit with a reasonable payment is usually more controllable. Probation must also stay within the legal cap and can only be agreed once, so do not extend or restart it; a longer probation is not the answer to thin evidence.

Bottom Line

Probation gives you a window to test a hiring decision, not an exemption from proving it. Prepare the standards and the paper trail on day one, not on the day you want to say goodbye.

Company B is a composite, illustrative case, not any specific client. Consult qualified PRC employment counsel for case-specific guidance.

About Rowint

Our company is a China-based, one-stop recruitment + EOR provider, helping international companies hire, employ, and manage teams in China, compliantly and efficiently, from drafting employment contracts and social insurance compliance to termination and layoffs. If any of this sounds familiar, reach out to us for a free compliance check-up.