The probationary period clause is a clause that is found in many employment contracts. This can lead to the fact that not much attention is paid to it. However, there are still a number of points that deserve attention.
It is important to know that the probationary period clause is regulated by law in Article 7:652 BW. This article states that the parties, employer and employee, may agree on a probationary period. During the probationary period, both parties have the right to terminate the employment contract immediately and this may in principle be for any reason.[1]
An important condition for a valid probationary period clause is the written requirement. The parties must therefore have agreed on the probationary period in writing, an orally agreed probationary period is therefore not valid.[2]
The second point of attention is the duration of the probationary period. This may be a maximum of one or two months, this duration depends on the duration of the employment contract.
For an employment contract of indefinite duration, a probationary period of up to two months may be agreed. For an employment contract of six months or less, no probationary period may be agreed and when it comes to an employment contract of more than six months but less than two years, a probationary period of up to one month may be agreed. Is it an employment contract for a fixed period of two years or longer? Then only a probationary period of up to two months may be agreed.[3]
The third point of attention is in line with the above, namely that any agreement in which a probationary period is agreed that is in conflict with the above is void.[4] This is because the probationary period is a period in which the employee has few rights and therefore should not last too long.[5]
If a term has been agreed that is longer than is legally permitted, it is assumed that no probationary period has been agreed at all. There is also no exchange to a permitted term.[6]
The last point of attention is the so-called second probationary period. For example, when a new employment contract is entered into between the same parties and there has been no interruption of work (or only for a short period[7]) a valid probationary period clause may not be agreed if this would exceed the total permitted duration.[8] This also applies to any new employer who is considered to be the successor of the previous employer.[9]
The above applies only to situations where the same work is involved and not when you are given a different position that requires different skills or responsibilities.[10] The Supreme Court teaches us that this can already be the case with a transition from a part-time to a full-time employment relationship.[11]
Are you an employer or employee and do you have questions about an employment law issue? Then please contact Elfi Employment Law Attorney without obligation.
[1] See article 7:676 paragraph 1 BW.
[2] See article 7:652 paragraph 2 BW.
[3] See article 7:652 paragraph 3-7 BW.
[4] See article 7:652 paragraph 8 BW.
[5] HR 9 April 1954, NJ 1954/446.
[6] HR 27 February 1930, NJ 1930, p. 977.
[7] HR 2 October 1987, NJ 1988/233 (Pons/Meerman).
[8] See article 7:652 paragraph 8, sub d.
[9] See article 7:652 paragraph 8, sub e.
[10] HR 14 September 1984, NJ 1985/244 (Hardchroom/Yigit).
[11] HR 30 June 1986, NJ 1986/715 (Raithe/Engel).
