The probationary period is a way for employers and employees to discover whether or not there is a match in the initial phase of working together on the basis of an employment contract. After all, the job application process often already provides clues to this, but as the well-known saying goes: “the proof of the pudding is in the eating”. This contribution discusses three recent judgments, setting out the legal framework.
Is a verbal dismissal during the probationary period legally valid?
A probationary period is legally valid only when it is concluded in writing. The probationary period is usually included in the employment contract. Can a dismissal during the probationary period be given verbally? The court recently ruled on this. An employee had signed an employment contract on 13 November 2023, for the duration of one year, with a probationary period of one month. On 12 December 2023, he was dismissed by his employer during a conversation. According to the judge, “it is not necessary for a dismissal during the probationary period to have been communicated in writing to the employee during the probationary period”.
However, the burden of proof was on the employer to prove that the dismissal was given verbally. The employer could prove on the basis of a WhatsApp message that the dismissal had indeed been given verbally, because the employee had sent the following WhatsApp message to the employer in response to the verbal dismissal: “I hold no grudges and genuine wish you all the best”. The dismissal during the probationary dismissal was therefore legally valid. In sum: a verbal dismissal during the probationary period is possible, but it must be provable.
You can read the full judgment here.
Duration of the probationary period
A painting company agreed to a three-month probationary period with a painter. After two months, the employer dismissed the employee, invoking the probationary period. However, the court ruled: "When there is an employment contract of more than six months and less than two years, a maximum probationary period of one month applies (Article 7:652 paragraph 4 sub a of the Dutch Civil Code). In this case, a probationary period of three months was agreed upon. This means that the probationary period clause is void”.
However, the painter did not want to return to work. Therefore, he received his salary until the end of the employment contract, a transition allowance and fair compensation of €100.
You can read the full judgment here.
Is it possible to agree on a second probationary period?
Another point of discussion is, whether a second probationary period may be agreed upon between employer and employee when a contract is renewed. In principle, the answer to this question is no, unless it involves a new position with new responsibilities.
The ruling at issue here involved an employee who worked in child care. She had a fixed-term employment contract as a BBL student (block or day release). She then received a new contract for the position of pedagogical assistant level 4. The employment contract in question included a probationary period clause, which was then invoked by the employer.
The employee went to court. The judge decided: “as a level 4 pedagogical assistant, clearly different skills or responsibilities were required than in the BBL student position. In the latter situation, the employee was supervised and did not bear final responsibility for the children/group. She does bear this responsibility right now. The dismissal during the probationary period was therefore upheld.
You can read the full judgment here.
Conclusion
It is important that a probationary period is agreed upon in writing and that the length of the probationary period complies with the legal rules governing it. Furthermore, it is important that - if the option to terminate the employment contract during the probationary period is used - this should be done in writing, or, if it is done verbally, to ensure that the dismissal during the probationary is provable. Moreover, among other things, it is important to know that a second probationary period may only be agreed upon if it concerns a substantially different position with substantially different responsibilities.
Of course, there are other issues that are important in the context of contracting a probationary period clause and/or dismissal during the probationary period. If you need advice on these matters, you can of course contact the employment law attorneys at SPEE advocaten & mediation.