Probationary Period in Employment Contracts: Rules for Employers

The probationary period is an important tool for employers to assess new employees. But the rules are strict. An invalid probationary period clause means you have no probationary period, with all the consequences that entails. In this article, we explain the rules clearly, discuss recent case law and offer practical guidance to avoid common mistakes.

What is a probationary period?

A probationary period is a period at the beginning of an employment contract during which both the employer and the employee can terminate the contract immediately, without a notice period and without giving reasons. The idea behind the probationary period is simple: it gives both parties the opportunity to assess whether the working relationship is a good fit. During the probationary period, the employer does not need to apply for a dismissal permit and does not have to pay a transition payment. It is therefore an attractive option, but the law sets strict conditions that the clause must meet to be legally valid.

Legal basis of the probationary period

The probationary period is regulated in Art. 7:652 BW. This article contains the core rules on the maximum duration, the written requirement and the conditions under which a probationary period clause is valid. The legislator has deliberately opted for strict formal requirements to prevent abuse and to protect the employee against arbitrary dismissal.

In addition, Art. 7:676 BW is relevant: this article governs immediate termination during the probationary period. The essence of the statutory regulation is that both parties are given the opportunity to assess the suitability of the other, without having to go through the full dismissal procedure. However, this mutual assessment period must always remain within the legal framework. Exceeding that framework leads to the nullity of the entire clause.

When is a probationary period valid?

A probationary period clause is only valid if it meets all legal requirements. The main conditions are:

1. Agreed in writing

The probationary period must be laid down in writing in the employment contract or collective labour agreement (CAO). A verbal agreement is not valid, even if both parties agree that a probationary period would apply. Likewise, a probationary period confirmed later by email but not included in the original contract is invalid. The written requirement is a strict one to which the court allows no exceptions.

2. Equal for both parties

The probationary period must be of equal length for the employer and the employee. A probationary period of two months for the employee and one month for the employer is void. The idea behind this is that the probationary period is a mutual assessment period. Both parties must have the same opportunity to terminate the employment contract without a notice period.

3. Respect the maximum duration

The maximum duration of the probationary period depends on the duration of the contract:

Please note: a contract for exactly 6 months falls into the category "less than 6 months". You are not entitled to a probationary period in that case. A contract of 6 months and 1 day does allow for a probationary period of up to 1 month. This may seem like a small difference, but in practice it regularly leads to disputes when employers misinterpret the threshold.

Examples from case law

Dutch case law provides useful examples regarding the validity of probationary period clauses. The Supreme Court has ruled that a probationary period clause that only states "1 month" without explicitly mentioning that it applies to both parties is still legally valid. This is because the law assumes that a probationary period always applies equally to both parties, unless expressly stated otherwise. An employer therefore does not need to specify this separately.

In another case, the subdistrict court ruled that a probationary period was invalid because the employer had verbally extended it after the period agreed in writing had expired. The court was clear: an extension of the probationary period is not permitted and a verbal amendment has no legal force. In general, judges interpret probationary period provisions strictly, with any ambiguities being interpreted in the employee's favour. Employers are well advised to have the wording of the clause carefully drafted. For more rulings, you can search on rechtspraak.nl.

4. Not in cases of successive employment

If an employee is going to perform the same or similar work as for a previous employer, and the new employer is considered a successive employer, a new probationary period is not permitted. This applies, for example, in the event of a transfer of undertaking or when a temporary agency worker is hired by the user company. The rationale for this is that the employee has already demonstrated their suitability for the position with the previous employer, meaning a new assessment period is not justified.

Common mistakes

In practice, we regularly see employers making mistakes with probationary period clauses. The most common are:

Mistake 1: Probationary period is too long

A two-month probationary period for a one-year contract is invalid. Not just the excess period, but the entire probationary period is then void. You then have no probationary period at all. This is a common misunderstanding: employers sometimes think that the excess is "capped" at the statutory maximum duration, but that is not the case. The entire probationary period is nullified.

Mistake 2: No written record

"But we agreed there was a probationary period, didn't we?" Without written proof, the employer is left empty-handed. It does not matter whether the employee verbally agreed to the probationary period. Without a written record in the contract or the CAO, the clause is legally non-existent.

Mistake 3: Probationary period in a short-term contract

A probationary period is not possible for a 5-month contract. Yet employers sometimes try this, for example by including a two-week probationary period. The clause is then void, regardless of the duration of the probationary period included.

Mistake 4: Termination after the probationary period has ended

Once the probationary period has expired, the normal dismissal rules apply again. Dismissing an employee the day after the probationary period ends "by invoking the probationary period" is not legally valid. The employer will then still have to apply for a dismissal permit from the UWV or request dissolution from the subdistrict court.

Mistake 5: New probationary period upon extension

If a temporary contract is extended, a new probationary period may not be agreed for the same work. After all, the employee has already proven their capabilities. This also applies if the job description changes slightly upon extension but the core of the work remains the same.

Dismissal during the probationary period

During the probationary period, the employer can terminate the employment contract with immediate effect. However, there are a few important points to consider:

• Verbal or written: Termination can be done verbally, but written is better for evidence purposes.
• Reason upon request: If the employee asks for the reason, the employer must provide it in writing.
• No discrimination: Dismissal must not be discriminatory. Dismissal due to pregnancy or illness during the probationary period can be unlawful.
• Good faith: The employer must also act in good faith during the probationary period.

Special situations

Illness during the probationary period

Dismissal during illness is in principle prohibited based on the prohibition of termination. However, this prohibition does not apply during the probationary period. The employer may therefore dismiss an employee during illness in the probationary period. It is important, however, that the illness is not the (sole) reason for the dismissal. If the employee can demonstrate that the dismissal was prompted solely by the sick report, it can still be deemed unlawful.

Pregnancy during the probationary period

Dismissal due to pregnancy is discrimination and is prohibited under the General Equal Treatment Act. If an employer dismisses a pregnant employee during the probationary period, the employee can challenge this. The burden of proof then shifts: the employer must prove that the pregnancy was not the reason for the dismissal, but that another, legitimate ground existed.

CAO provisions

Some collective labour agreements (CAOs) contain different rules about the probationary period. These are usually more favourable to employees, for example a shorter maximum probationary period or additional procedural requirements. Always check the applicable CAO before including a probationary period clause.

Checklist: Is your probationary period clause valid?

Use the checklist below to assess whether your probationary period clause meets all legal requirements:

1. Is the contract for longer than 6 months? For a contract of 6 months or less, a probationary period is not legally permitted, regardless of what the parties agree.
2. Is it recorded in writing? The probationary period must be stated in black and white in the employment contract or applicable CAO. Verbal agreements or subsequent email confirmations are not sufficient.
3. Is the maximum duration not exceeded? For a contract up to 2 years, a maximum of 1 month applies; for 2 years or longer, or a permanent contract, a maximum of 2 months applies.
4. Is it equal for both parties? The probationary period must have the same duration for the employer and the employee. An unequal probationary period leads to the nullity of the entire clause.
5. No successive employment? If the employee previously performed the same work through another employer, a new probationary period is not permitted.
6. No previous employment contract for the same position? When extending a contract for the same work, a new probationary period may not be included.
7. Not in conflict with the applicable CAO? Some CAOs further restrict the probationary period or impose additional requirements. Always check this beforehand.
8. Is the start date clearly stated? It must be clear when the probationary period begins and ends, so that no discussion can arise about the exact period.

Tips for employers

To avoid problems, here are some practical tips:

1. Have employment contracts drafted or checked by an employment lawyer.
2. Document the performance of new employees during the probationary period.
3. Decide in good time - do not wait until the last day of the probationary period.
4. Provide feedback so that a dismissal does not come as a bolt from the blue.
5. Record the dismissal in writing, dated within the probationary period.

Alternatives to the probationary period

If a probationary period is not possible (for example, with a contract shorter than 6 months), there are alternatives:

• Temporary agency work: Have the employee work through a temporary employment agency first.
• Short-term contract: Start with a short-term contract of, for example, 3 months, with the possibility of extension.
• Assessment: Carry out an extensive selection process before you hire someone.

What if things go wrong?

Have you made a mistake with the probationary period as an employer? Or have you been unfairly dismissed during your probationary period as an employee? If so, contact a lawyer. An employment dispute is best tackled early. The longer you wait, the more difficult it becomes to rectify the situation.

Conclusion

The probationary period is a useful tool, but the rules are strict. An invalid probationary period clause means you have no probationary period. The consequences of this are significant: without a valid probationary period, the employer must go through the full dismissal procedure, including a notice period and possibly a transition payment. Therefore, always ensure that the clause is correctly drafted and that you act within the legal framework.

Are you in doubt about the validity of a probationary period clause or do you have questions about dismissal during a probationary period? Please feel free to contact us for advice.

Frequently asked questions about the probationary period

Can a probationary period be agreed verbally?

No. Based on Art. 7:652(2) of the Dutch Civil Code (BW), a strict written requirement applies. The probationary period must be included in the employment contract or the applicable collective labour agreement. A verbal agreement, even if both parties agree to it, is not legally valid. Without a written record, the probationary period simply does not exist.

Does a probationary period also apply to temporary agency work?

Yes, a probationary period can also be agreed in temporary agency work contracts. However, the possibilities depend on the applicable collective labour agreement (CAO). Under the ABU and NBBU CAOs, specific rules apply to the probationary period in temporary agency work, which may differ from the standard regulation in the Dutch Civil Code. Always consult the relevant CAO before including a probationary period clause in a temporary agency work contract.

Can I dismiss someone on the last day of their probationary period?

Yes, the employer may terminate the employment contract up to and including the last day of the probationary period. It is, however, advisable to confirm the dismissal in writing, stating the date, so that no discussion can arise as to whether the termination was still within the probationary period.

Is a probationary period possible in the case of secondment?

That depends on the legal structure. In a true secondment, the employee is employed by the secondment agency and is posted to the client. The probationary period is then included in the employment contract with the secondment agency. In the case of payroll structures or if the employee is in fact employed by the client, the normal rules apply. Here too, pay attention to the prohibition of successive employment: if the employee previously worked for the client, a new probationary period may be invalid.

Am I entitled to unemployment benefits (WW) after dismissal during the probationary period?

In principle, yes, provided you meet the usual conditions for unemployment benefits (WW). The main requirement is that you have built up a sufficient employment history: you must have worked for at least 26 weeks in the 36 weeks prior to your unemployment (the "weeks requirement"). Dismissal during the probationary period is not considered culpable unemployment, as long as you did not actively bring about the dismissal yourself. Register with the UWV as soon as possible to secure your rights.