Dismissal during the probationary period

The employer and employee may agree on a probationary period. It provides the employer the possibility to assess the employee’s suitability for the job, while giving the employee the opportunity to get to know the workplace. Both the employer as well as the employee may terminate the employment agreement with immediate effect provided that the probationary period did not expire.

Validity probationary period clause

A probationary period must be agreed upon in writing. For instance, in an employment agreement or collective labour agreement that is applicable to the employment agreement.
The maximum duration of a probationary period depends on the length and type of employment agreement:

• One month: if the employment agreement is entered into for more than six months but less than two years.
• One month: if the employment contract is entered into for a definite period without an end date. For example, an employment contract for the duration of a project.
• Two months: if the employment agreement is entered into for a minimum period of two years.
• Two months: if the employment agreement is entered into for an indefinite period of time.

No probationary period clause may be agreed upon when the employment agreement is entered into for a period of six months or a shorter period.
If an employment agreement is successive to another employment agreement, no probationary period may be agreed on, unless it is a different position that requires different skills or responsibilities from the employee. Also, no probationary period may be agreed on if the employer qualifies as a successor employer.

Dismissal 

A legally valid probationary period clause allows an employer to terminate the employment agreement with immediate effect in principle both during and before the start date of the employment agreement, as long as the probationary period did not expire. This can be done without involvement of the court or UWV. A ‘reasonable ground for dismissal’ as is usually the case is not required. Therefore, it is not necessary to provide an employee with the reason for the dismissal unless the employee asks for it. Moreover, the employer does not have to comply with any redeployment obligations or applicable notice periods. In addition, a probationary dismissal can also be given if the employee is ill, unless the illness is the reason for the probationary dismissal. A probationary dismissal may not be discriminatory or in violation of the principle of ‘good employership’ (goed werkgeverschap). In other words, the employer must not abuse its authority to dismiss an employee during the probationary period.

Questions?

Do you have any questions about probationary periods? Please contact Jaouad Seghrouchni, attorney at law in Employment Law, Employee Participation and Pensions.