It is exciting for both an employer and employee to enter into a new employment relationship. Does the employee fit in with the other colleagues and is (s)he actually suitable for the position? Is the company as nice as it seems and does the function live up to expectations?
Parties can agree on a probationary period
In order to offer the employer and employee the opportunity to get to know each other a bit more and simply say goodbye if the cooperation is not satisfactory, they can agree on a probationary period. However, this is only an option in case parties did not agree upon a temporary employment contract for a shorter duration than 6 months. Furthermore, the probationary period must be agreed in writing, for example in the employment contract.
During the probationary period, the employment contract can be terminated with immediate effect
No notice period applies during the probationary period. This means that the employer and the employee can terminate the employment contract with immediate effect. The employee can therefore decide from one moment to the next that (s)he would rather look elsewhere. Conversely, the employer can also request the employee on an ad hoc basis to pack his bags.
If one of the parties wishes to terminate the employment contract during the probationary period, the termination must take place no later than the last day of the probationary period. In the event that the employer informs the employee on the penultimate day of the probation period that he wishes to terminate the employment contract with effect from the following week, the probationary period will not be terminated. The employment contract will then continue. If the employee gives notice during the probationary period, (s)he is not entitled to unemployment benefits.
De proeftijd is nooit lanThe probationary period can never exceed 2 months
Het proThe maximum duration of the probationary period depends on the duration of the employment contract and whether a collective labor agreement applies. If no collective labor agreement is applicable, the following statutory terms apply:
- In case of an employment contract for an indefinite period, a probationary period of a maximum of 2 months can be agreed.
- In case of a fixed-term employment contract with a duration of less than 2 years (but longer than 6 months), the probationary period may not exceed 1 month.
- In case of a fixed-term employment contract with a duration of 2 years or longer, the probationary period may not exceed 2 months.
- If the end of an employment contract is not set on a calendar date, the probationary period may not exceed 1 month. Examples are agreements for the duration of a project or for as long as a sick colleague is not able to work.
- Please note: An agreed probation period is only legally valid if it is equal for both parties.
The “iron probation” theory applies to the probationary period. This means that (if no collective labor agreement is applicable that says otherwise) no probation period may be agreed that is longer than the aforementioned statutory periods. A probationary period clause that conflicts with this is null and void. In that case the probationary period is completely off the hook and will not be converted into a legally valid probation period. A probationary period clause may also not be extended or suspended. For example, if an employee becomes ill during the probationary period or goes on holiday, the employee is not entitled to a longer probationary period.
A collective labor agreement can determine otherwise
Is a collective labor agreement applicable? In that case, a shorter or in certain cases a longer probation period may apply vis-à-vis the aforementioned statutory periods. However, even in the case of a collective labor agreement, a probationary period can never exceed 2 months.
No probation period in case the employer is already familiar with the skills
A probationary period cannot be agreed if the employer is already familiar with the employee’s skills. Think of the situation in which the employee already works for the employer or was previously employed shortly before. The same applies if an employee is employed by a ‘successor employer’. In these cases, however, the same function and tasks must be involved. If the position for which the employment contract is entered into clearly requires different skills or responsibilities, it is possible to agree on a new probationary period.
Dismissal during the probation period
Dismissal during the trial period is also possible if the employee becomes ill. There is no preventive assessment by the UWV or the Cantonal Judge for dismissal during the probationary period. The employer does not need a ground for dismissal. If the employee so requests, the employer is obliged to state the reason for the dismissal in writing. For an employer, it is recommendable to always give a neutral reason for dismissal during the probationary period, for example by indicating that the employee does not fit into the team. The reason may never conflict with the prohibition of discrimination. For example, an employer may not fire the employee because she is pregnant.
In case you have questions about the probationary period, please do not hesitate to contact us.