Understanding the Probationary Period in the Netherlands

The probationary period is when the employee and employer get to know each other. During this period, they can assess whether they have made the right choice to enter into the employment contract with each other. During the probationary period, the parties can end the employment contract without observing the notice period. The contract can, therefore, be terminated immediately. If the employer terminates the contract, it does not have to go through court or UWV proceedings first. Nor does the employer have to offer a termination agreement.

The law does not require employers to include a probationary period. However, it is often included in employment contracts. In this blog, I address some key elements of such a clause.

Legal Requirements

Because the employee has little protection against dismissal, there are strict requirements for the validity of a probationary period clause.

A probationary period must be agreed upon in writing. An agreed probationary period is legally valid only if it is the same for both parties. For example, it cannot be the case that only the employer can invoke the probationary clause.

How long the probationary period may last depends on the length of employment. If there is an employment contract for 6 months or less, no probationary period may be agreed upon. For a fixed contract of up to two years, a probationary period of 1 month can be included in the employment contract. If there is a fixed-term employment contract with no agreed end date, a probationary period of 1 month may also be agreed upon. In the case of permanent or temporary employment contract of two years or more, the probationary period may be 2 months.

If all requirements have not been met, the probationary clause is null and void. This means that, for example, if a probationary period clause of three months is agreed upon, the result is that no probationary period clause applies at all.

Successive Employment Contract With the Same Employer

The purpose of the probationary period is to understand an employee’s abilities and skills. Therefore, when an employee has previously worked for the same employer and enters into a new employment contract, a probationary period cannot be agreed upon again. This also applies in the case of two successive employers within the same corporate group.

However, if the position involves clearly different duties, it is possible to agree on a probationary period again, even with the same employer.

Termination During the Probationary Period

If the employee or employer decides to terminate the labor contract during the probationary period, notice must be given by the last day. For example, if the employer informs the employee on the penultimate day of the probationary period that the employment has been terminated as of the following week, termination has not occurred during the probationary period, and the labor contract continues.

When terminating the employment contract during the probationary period, the employer does not have to prove any of the reasonable grounds for dismissal listed in the law. The employer does not have to explain a reason (in writing). However, if the employee requests it, the employer can be expected to explain the reason for the probationary dismissal. As an employer, it can be wise to give a neutral reason for dismissal when dismissing during the probationary period, for example, indicating that the employee does not fit into the team.

Finally, it is also important that the termination should not violate the prohibition on discrimination. For example, an employment contract may not be terminated simply because the employee is pregnant.

Need assistance with an employment law issue? The definitely reachout to Roos van Zaltbommel from GMW Lawyers.