When entering into an employment contract of more than six months, a probationary period may be agreed upon. A probationary period gives the parties the opportunity to get acquainted with each other, with the nature of the work and to assess the suitability of the employee. During the probationary period, both parties can terminate the employment contract with immediate effect. The employee therefore has little or no protection against dismissal during the probationary period. For this reason, legal limits have been set for the probationary period clause. We will discuss these limits below.
The probationary period clause
A probationary period clause must meet the following requirements:
- The probationary period must have been agreed upon in writing when the employment contract was entered into. The probationary period may also be agreed upon in the applicable collective labour agreement.
- The duration of the probationary period is the same for both parties.
- The probationary period may not exceed the duration that is permitted by law (see the paragraph “Duration of the probationary period” below).
- The probationary period clause is agreed in the first employment contract. Only if there is a successive employment contract that clearly demands different skills or responsibilities from the employee, a new probationary period can be agreed upon. This is also the case if the employee comes from another organization and the new employer can be considered a successive employer.
If the probationary period clause does not meet these requirements, the clause is null and void.
Duration of the probationary period
The legally permissible duration of the probationary period depends on the duration of the employment contract.
|Duration employment contract
|Duration probationary period
|six month or less
|no legally valid probationary period
|more than six months
|one month (unless the applicable collective labour agreement provides otherwise)
|two years or more, or if there is an indefinite employment contract
The statutory duration of the probationary period may not be exceeded. This is strictly applied by the court. Therefore, the probationary period is sometimes referred to as the “Iron probationary period” (in Dutch: ijzeren proeftijd). Among other things, this means that:
- If an employee is ill or goes on vacation, the probationary period may not be extended by this period.
- If a probationary period is longer than permitted by law, this will not be converted into a shorter, valid probationary period. In that case, the employment contract shall be deemed to have been entered into without a probationary period.
- If an employee starts working earlier than agreed, the probationary period starts as from the moment the work is being performed. Therefore, the probationary period will end earlier than agreed.
Dismissal during the probationary period
Both the employee and the employer may terminate the employment contract with immediate effect during the probationary period. In doing so, no notice period needs to be observed. With an appeal to the probationary period, the employment contract may also be terminated before it has started.
In the case of a dismissal during the probationary period, the employee is not protected against dismissal, except in the case of abuse of rights or discrimination (e.g. dismissal may take place during illness, but not because of illness). To dismiss the employee, the employer does not need to have a reasonable ground for dismissal or the consent of the employee, and does not need to try to reassign the employee within the organization. However, the parties must behave towards each other as a good employee and employer.
Furthermore, the employer does, in principle, not need to share the reason for the termination with the employee. If the employee does request this, the reason must be communicated to the employee in writing.
For the hours worked, the employer must pay salary to the employee. Also, if the employer terminates the contract during the probationary period, the employer must, in principle, pay the employee the statutory severance payment.
Do you have any questions about the probationary period? Please contact one of our lawyers.