Publication date: 26 February 2018
When concluding an employment contract, a probationary period can be agreed upon. A probationary period is subject to statutory periods. Please note: If an employee starts performing activities before the commencement of the probationary period, the probationary period will start and end earlier than agreed.
The purpose of the probationary period is for the employer and employee to get to know each other better before being bound to each other. During the probationary period, both the employer and the employee can terminate the employment contract. During this period the rules regarding employment protection do, in principle, not apply. However, if requested, the reason for termination has to be communicated.
These are the requirements for a probationary period clause:
The statutory periods are:
In employment contracts of a period shorter than six months no probationary period may be included. The Rutte III cabinet intends to extend the probationary periods for employment contracts of two years or longer and for an indefinite period.
If these requirements are not met, the probationary period clause will be void.
What happens if the employee performs work for the employer before the employment contract has started? Does the probationary period agreed upon apply or does in that case the probationary period commence earlier?
In a recent decision, it was determined that the probationary period begins to run when the employee actually starts to perform the activities he or she was employed for, even if the probationary period starts at a later date according to the employment contract. Indeed, as soon as the employee performs work, he or she can be “tried”.
Employers therefore should be careful when asking employees to perform activities before the employment commences. If the probationary period starts earlier (and thus ends at an earlier date) you might terminate the employment contract on grounds of the probationary period clause when the probationary period has already ceased. In that case, the employee would be entitled to reinstatement of employment and continued payment of wages.
When would a court assume that the probationary period has expired before the commencement of the employment contract? The court will assess three elements of the employment contract: work, wages and authority.
Would you like to include a probationary period clause in your employment contracts or would you like your employees to perform activities before the employment contract has started and would you like to know whether or not the trial period starts earlier? Or would you like us to draft a model contract? Please contact:
What must employers keep in mind regarding a work culture where everyone feels comfortable? What are the legal rights of pregnant employees and employees with children? Our lawyers Eileen Pluijm and Priscilla de Leede answer these questions in their article in Lady Justice, the magazine of the Women Lawyers Section of Primerus.read on
What rights does the works council have in relation to measures against the coronavirus within the company? And what role does the works council play with regard to the (im)possibility of mandatory vaccination against the coronavirus?read on
According to the Amsterdam District Court, Uber drivers are employees. Therefore, they are covered by the collective agreement of the taxi industry with all associated rights and obligations. How did the District Court reach this judgement? And what does it mean for other forms of platform work?read on
In this article, we will discuss several questions and challenges in the field of Dutch employment law, tenancy law and contract law during COVID-19.read on
Do the new rules of the Supreme Court for the assessment of employment contracts also have consequence for management agreements? Case law has not decided yet. This can be seen from the judgments of the Arnhem-Leeuwarden Court of Appeal and the District Court of Midden-Nederland about the management agreement of the CFO of Volksbank.read on
A sick employee may not be dismissed. However, an employee who knows of imminent dismissal, cannot avoid this by reporting sick. But when does the employee know that this is the case? This question was central to the court case concerning the dismissal of a CFO of Volksbank.read on
Employers can determine rules on clothing and appearance in company regulations. What do employers have to keep in mind when setting such rules?read on
In the last issue of Stare Decisis, Priscilla de Leede of Russell Advocaten, Mary Edenfield of Mateer Harbert and Ed Belam of Marriott Harrison discuss the most important topics to include in your employment contracts regarding the termination of the contract. There are some important differences to take into account!read on