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:
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
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
If your employee reports sick, this may raise many difficult questions. What are your reintegration obligations during the sick leave period? What are you allowed to record about your sick employee with regard to the privacy legislation? We answered these and other questions during a webinar. Watch the video!read on
Is there already a works council in your company? Are you a member of your company’s works council? What are the advantages of having a works council in your company? Jan Dop and Priscilla C.X. de Leede explain the role of the works council and give an overview of the works council’s most important rights.read on
Russell Advocaten has for the 17th consecutive year in a row been included in The Legal 500. We are pleased with the recognition for the quality of our legal services by experts and clients. Please read what they say about us:read on