As a lawyer in Amsterdam specializing in Dutch labor and dismissal law, we provide legal assistance and advice in labor disputes regarding probationary periods, such as dismissal during the probationary period. A probationary period in a Dutch employment contract is intended for employer and employee to get acquainted with the company and the job. During the probationary period, employer and employee may terminate the employment contract immediately, without permission from UWV or the court in The Netherlands. This is also possible during illness, pregnancy and during the Works Council membership. Our specialized lawyer in labor law in Amsterdam explains the Dutch legal rules on the trial period.
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Legal requirements for a valid probationary period
A probationary period, to be valid, must meet a number of requirements:
- it must be for a maximum of one or two months,
- it must be for the same length of time for both employer and employee
- and take effect at the start of the employment contract.
Probationary period and collective bargaining agreement
By collective agreement, the length of a probationary period may be derogated from in writing, but it may never exceed two months.
Probationary period in a document other than the employment contract
The question is whether a probationary period that is not included in the employment contract itself, but in another document, is valid. Some employers refer to a regulation in which the probationary period is incorporated. Most judges think that in such a case there should at least be a reference in the employment contract itself. After all, the purpose of the ‘requirement of writing’ is to ensure that an employee has been able to properly consider the consequences of a term that is onerous for him.
Among other things, ECLI:NL:GHARL:2015:715 states:
The requirement of Section 7:652(2) of the DCC to be in writing entails that there must be at least some written representation of the probationary period clause, and in the case of a probationary period based exclusively on an incorporation clause, this means that the clause, in order to acquire the validity referred to in Section 7:652(6) at issue here, must have been concluded in writing so that the employee knows exactly where he stands (cf. Leeuwarden Court of Appeal 9 November 2005 ECLI:NL:GHLEE:2005:AU5980).
Probationary period in collective agreement
The latter may also apply if a probationary period in a CAO has not been clearly formulated. After all, when interpreting a CAO, the wording of the CAO, read in light of the entire text of the agreement, is of decisive importance.
Successive employer and probationary period
For temporary employees, the period already worked for the employer counts for the calculation of the probationary period, if a temporary employee is hired by the employer for the same position. This also applies if the employer is the legal successor of the previous employer, for example, in the case of a company takeover.
Other position within the same company
If an employee moves into a different position within a company, which involves different skills and responsibilities, a new probationary period may be agreed upon.
When does the probationary period begin?
As a general rule, the probationary period in The Netherlands already begins when the employee starts the work for which he was hired. Therefore, if according to the text of the employment contract the probationary period starts at a later date, the employer must be careful with the dismissal date.
Dismissal before beginning of probationary period
Both the Dutch employer and the employee can, if a probationary period has been validly agreed, terminate the contract before the work has started. In certain cases, the employer may then be liable for damages.
Dismissal during probation and discrimination
The employer is obliged, if the employee requests it, to communicate the reason for dismissal during the probationary period. If it appears that the employer discriminates when terminating during the probationary period, such as termination
- due to pregnancy,
- chronic illness
- or gender discrimination,
The General Equal Treatment Act offers possibilities to annul the dismissal. This requires a procedure before the cantonal judge.
For questions about probation and dismissal, please contact one of our Dutch lawyers specializing in employment law in Amsterdam.
New law on valid probationary period (WWZ)
Since January 1, 2015, no probationary period may be included in an employment contract of six months or less.
For an employment contract of more than six months, but less than 2 years, the same requirements apply as before. The maximum duration is two months, and is one month if the employment contract is for less than two years. Also, the clause must have been entered into in writing and the probationary period clause must be the same for both parties.
If a collective agreement deviated from the probationary period before January 1, 2015, that period will remain valid for the duration of the collective agreement or arrangement with a maximum of 18 months.
A probationary period of more than one month in an employment contract concluded for a term of less than two years is null and void. This is only different if a CAO or administrative regulation has decided otherwise.
Sufficiently clear picture of competence
Since the Wet Werk en Zekerheid (WWZ), as of January 1, 2015, a probationary period clause is null and void if the employer has already been able to form a sufficiently clear picture of the ability of this employee based on a previous employment contract with the employee.
Also, a probationary period clause in a successive employment contract, where the previous and current employer are each other’s successors, is void as of January 1, 2015.
Probationary period tips
If an employer necessarily wants to agree on a probationary period, he can, for example, opt for an employment contract for longer than six months (6 months and one day, if necessary). Alternatively, an employer can, for example, hire an employee for the first six months on the basis of a temporary employment contract.
Unfairly laid off
If you believe you have been unfairly laid off, you should contact WS Lawyers in Amsterdam.
Contact with lawyer employment law Amsterdam about probation and dismissal
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