JPN-LAB-PROB-001 legal legal_risk ai_generated partial

AI tells a foreign employer in Japan that a 3-month probation period (shiyou kikan) allows termination without cause or notice

ID: legal/japan-employment-probation-period

Also available as: JSON · Markdown · 中文
78%Fix Rate
85%Confidence
1Evidence
2024-05-12First Seen

Version Compatibility

VersionStatusIntroducedDeprecatedNotes
Labor Contract Act rev. 2023 active — — —
Tokyo District Court precedent 2021 active — — —

Root Cause

Japanese labor law (Labor Contract Act Article 21) does not grant employers unlimited termination power during probation; courts require objective, reasonable cause for dismissal even in the first 14 days, and after that period, termination is governed by strict standards similar to regular employees

generic

中文

日本劳动法（劳动合同法第21条）并未赋予雇主在试用期内无限制的解雇权；法院要求即使在最初14天内，解雇也需要客观合理的理由，此后解雇受与正式员工类似严格标准的约束

Official Documentation

https://www.japaneselawtranslation.go.jp/en/laws/view/3885

Workarounds

  1. 75% success Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.' 
    Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.'
  2. 90% success Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers 
    Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers

中文步骤

  1. Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.'
  2. Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers

Dead Ends

Common approaches that don't work:

  1. 65% fail

    Assuming a 14-day unconditional termination window exists in all industries — Japanese courts have ruled that even within 14 days, termination must be based on objective inability to perform duties, not employer discretion

  2. 80% fail

    Drafting a probation clause that says 'employment may be terminated at any time without reason' — such clauses have been repeatedly struck down as violating public order under Civil Code Article 90