Opportunities and concerns with a probationary clause

In my previous blog, I discussed why as an employer you should choose to offer a temporary contract, or still offer a permanent contract right away. One of the advantages of a permanent contract is that you can agree on a longer probationary period. In this blog, I discuss the probationary period in more detail.

If you want to agree on a probationary period, the following conditions always apply:

• The probationary period is the same for both parties;
• The probationary period can only be agreed upon in writing (so a verbal agreement is not sufficient, even if you can prove that the verbal agreement was made);
• In a contract of six months or less, a probationary period can never be included.

The length of the probationary period depends on the length of the employment contract:

• In an employment contract longer than six months but shorter than two years, a probationary period of up to one month can be agreed upon;
• In an employment contract of two years or longer, or when a contract of indefinite duration is concluded immediately, a probationary period of up to two months may be agreed upon;
• In a fixed-term employment contract without an end date (for example, a contract for the duration of a particular project), a probationary period of up to one month may be agreed upon.

If a probationary period is agreed upon that does not meet the legal requirements, the entire probationary period is "null and void" (invalid). For example, an improperly agreed upon two-month probationary period is not converted into a one-month probationary period, but has the effect of invalidating the entire probationary period. This is also known as the "ironclad probationary period."

• Example: if someone starts on January 1, 2023 on the basis of an annual contract with a probationary period of two months, the entire probationary period clause is void. In fact, a maximum of one month may be agreed upon in an annual contract. The employer can then no longer invoke the probationary period clause at all, even if he would like to dismiss the employee already on January 2, 2023. After all, the entire probationary period clause is "null and void" and therefore not applicable.

Furthermore, when agreeing to a probationary period, you should consider the following:

• The purpose of the probationary period is to gain insight into an employee's abilities and skills. Therefore, a probationary period cannot be included with an employee who is getting his second or third (successive) employment contract, for example.
• Also, it is often not possible to include a probationary period with, for example, a temporary employee or trainee who has already worked for your company in other ways (and whose performance is already known);
  If someone comes for a day earlier than the agreed start date, the probationary period may start on that earlier day. Suppose an employee joins the company on January 1, 2023 with a one-month probationary period, but on December 15, 2022, he comes for a day's training, then he can (successfully) argue that the probationary period already ends on January 14, 2023.
  Judges are very strict when it comes to probation clauses. For example, there are examples of employers asking their employees to report to the employer on the last day of the probationary period. The employees (who sometimes already felt wetness), were unreachable that day and were not fired until the next day, for example. Judges ruled in those cases that the employer was too late.

It is therefore important to properly record the termination under the probationary period clause and provide proof. For example, send a registered letter, but also send the employee a copy of that letter by email or WhatsApp in a timely manner. The "blue ticks" on WhatsApp can serve as proof of timely termination if necessary.

Over the next few weeks, I will continue to discuss areas of concern when hiring employees. In my next blog, I will address the employer's "obligation to give notice": the obligation to inform employees in a timely manner whether or not their employment contract will be renewed.