Netherlands Update: Mistake with the Probationary Period Clause is Costly for the Employer

When entering into a first employment contract, the employer and employee can agree on a probationary period clause. This clause serves as a mutual acquaintance period: both parties are given the opportunity to discover whether the collaboration and the position meet expectations. If you do not like it, both parties can terminate immediately during the probationary period, without giving a reason. However, such a clause is subject to strict legal requirements. What are those rules again? And what happens if you don’t stick to it?

The probationary period clause: what about it again?

A probationary period clause is only legally valid if it meets a number of legal requirements. For example, the probationary period must be the same length for both parties, be laid down in writing (for example in the employment contract, collective labor agreement or employment conditions regulation), and remain within the legally permitted duration. In addition, in the case of a successive contract with the same or a successive employer, a new probationary period may only be agreed if the position clearly requires different skills or responsibilities.

The legally permitted duration of the probationary period depends on the length of the employment contract. The law sets clear limits to this:

• Contract of six months or less: a probationary period is not allowed;
• Contract longer than six months, but shorter than 2 years: a maximum of one month, unless the collective labor agreement regulates otherwise;
• Contract of two years or longer, or a contract for an indefinite period: maximum two months.

If the probationary period clause does not meet the requirements or exceeds the permitted duration, the clause is null and void. In that case, the employment contract is considered to have been entered into without a probationary period.

Recent ruling: mistake in contract

In a recent judgment of the District Court of Midden-Nederland, the central question was whether the employer had agreed on a legally valid probationary period clause with the employee. She joined a healthcare institution on 1 January 2025 on the basis of a temporary contract. Relations soon became disrupted: shortly after her appointment, the employee had informed the employee by e-mail that she would be going on holiday in the first three weeks of January. However, the employer had overlooked this message. After the employee’s return, there was also a discussion about her schedule wishes.

On 27 January 2025, the employer terminated the employment contract with immediate effect, citing the probationary period clause. However, the employee argued that the probationary period clause was null and void because it was an employment contract for a period of six months.

Judgment of the court

The Subdistrict Court ruled in favour of the employee and ruled that the probationary period clause was null and void. The employment contract stated that the employee would be employed on 1 January 2025 for a period of six months. Another provision stated that the employment contract ended on 2 July 2025, which amounts to six months and two days. The Subdistrict Court considers this unclear. After all, a probationary period is not allowed with a six-month contract, but with a six-month and two-day contract, it is. The lack of clarity is at the expense of the employer. The employee was entitled to assume that a contract for the duration of six months had been agreed. The probationary period clause is therefore null and void and the employer has unlawfully terminated the employment contract.

Because there was an unlawful dismissal, the court awarded a transition payment of EUR 83.30 and fair compensation of no less than EUR 17,000. The latter amount is approximately equivalent to the salary that the employee would have received if she had worked the full six months.

Conclusion

This judgment emphasizes how important it is to be careful when formulating employment contracts, especially in the case of a probationary period clause. A slight lack of clarity about the duration of the contract can already lead to the nullity of the probationary period clause, and thus to an unlawful termination when invoking this null and void clause, with all the financial consequences that entails. So be alert to the strict conditions regarding probationary period: a small mistake can be expensive.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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