The probation clause in Dutch employment contracts explained

The probation clause is a contract term that you will find in most employment contracts. Since the probation clause is so common, it often does not receive much attention. However, there are some aspects of this clause that deserve a closer look. The team from Elfi Lawyers explains the probation clause in further detail.

It’s important to know that the probation clause is codified in article 7:652 of the Dutch Civil Code. This article states that the parties to the contract, the employer and employee, are allowed to agree to a probation period. During this probation period both parties are entitled to terminate the employment contract effective immediately. In principle, any ground for termination is allowed.

An important condition for a legally valid probation clause is that it is put in writing. A verbally agreed upon probation clause is not legally enforceable.

Duration of probation period

Another important aspect pertains to the duration of the probation period. The maximum duration of the probation period is one or two months, depending on the expiry date of the employment contract.

In the case of an indefinite employment contract, the parties can agree to a maximum probation period of two months. If the employment contract has a duration of six months or less, however, a probation period is not allowed.

When the employment contract has a duration of more than six months but less than two years, the maximum probation period that the parties can agree to is one month. How about a temporary contract of two years or longer? In that case, a maximum probation period of two months is allowed.

Illegal probation periods can nullify contracts

The next point of focus builds upon the preceding conditions. Namely that each clause in which the contract involves a probation period that doesn’t comply with the conditions mentioned above is null and void. This is because the probation period is a phase in which a worker has few rights and so this period should not last too long.

The consequence is that if an employment contract contains a probation period that is longer than legally permissible, it is assumed that parties did not agree to a probation period at all. Such a probation period does not automatically transform into a permissible shorter period.

Second probation period

The last important aspect is the so-called second probation period. When, for example, the same parties enter into a new employment contract and there has not been any cessation of work - or the work discontinuance was only for a short period - the parties cannot agree to a legally valid probation period if this exceeds the maximum period allowed. This means that the new probation period has to be added onto the old one, and together it cannot exceed the maximum period. This rule also applies to a new employer that is considered to be the successor of the previous employer.

The above only applies to situations where the job description remains the same. In other words: when one continues to perform the same tasks. It does not apply in the case of a different job description that requires different skills and carries other responsibilities. Additionally, the Supreme Court of the Netherlands teaches us that a change from part-time work to full-time work can already legally be considered a different job description.

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