Allowing an employee to work for a few days before the official start date of the employment contract may seem harmless. But it is precisely this early start that can have significant consequences under employment law, including for the probationary period.<\/p>\n
This is evident from a ruling by the North Holland District Court dated 9 July 2026. According to her written employment contract, an employee was due to start work on 5 January 2026, but had in fact already worked two days as a doctor\u2019s assistant in December. When the employer sought to terminate the employment contract on 4 February 2026, invoking the agreed probationary period, this backfired.<\/p>\n
According to the subdistrict court, the employment contract had already commenced on 15 December 2025 as a result of the actual work carried out. This not only called into question the validity of the probationary period clause; even if a valid probationary period were assumed, it had already expired at the time of the notice of termination.<\/p>\n
What were the facts of this case?<\/strong><\/p>\n In November 2025, a woman applied to a temporary employment agency for the position of doctor\u2019s assistant. On 24 November and 5 December 2025, the employer sent her an offer of an employment contract by email, which she accepted on 5 December. The employer responded by informing her that she was welcome to join the team.<\/p>\n On 15 December 2025, the woman worked for the first time, for four hours, as a doctor\u2019s assistant at a client\u2019s premises. That same day, she received a written employment contract, stating a start date of 5 January 2026, a one-month probationary period, 32 hours per week and a gross monthly salary of \u20ac2,375. On 17 December, she worked again, this time for nine hours. On 25 December, she signed the written contract and returned it.<\/p>\n In early January 2026, the employer asked again whether she was still interested in starting work, to which she replied that she had already signed and sent the contract. On 8 January 2026, the employer informed her by telephone that an assignment had fallen through and that a new one would be sought as a matter of urgency. After the woman had repeatedly asked for clarification in January, to no avail, the employer informed her by email on 4 February 2026 that they were withdrawing the offer of an employment contract. According to the employer, no contract had ever come into effect because no work had been carried out, and the contract \u2013 insofar as it did exist \u2013 would in any case have been terminated within the probationary period.<\/p>\n The woman applied to the subdistrict court for various forms of compensation, partly on the grounds of the irregular termination. She claimed a transition payment, equitable compensation, outstanding wages, compensation for unused holiday entitlement and compensation for a promised lease car. The employer appeared at the hearing \u2013 without having submitted a statement of defence \u2013 and argued that an employment contract had never come into existence, that the work carried out on 15 and 17 December had merely been \u2018on a trial basis\u2019, and that, in any event, the option to terminate the contract within the probationary period had been exercised in a timely and justified manner.<\/p>\n The subdistrict court\u2019s considerations and ruling<\/strong><\/p>\n The subdistrict court first ruled that an employment contract had indeed been formed, and that this had taken place as early as 15 December 2025. The woman had accepted the employer\u2019s offer on 5 December and subsequently actually worked on 15 and 17 December. An employment contract may also be formed orally and arise from the actual commencement of work; the fact that no written contract signed by both parties existed at that time does not alter this. The defence that the work was merely \u2018on a trial basis\u2019 is rejected, as the woman actually carried out one and a half days\u2019 work in return for wages, and the employer has in no way substantiated the claim that this would not have constituted an employment contract. The subdistrict court also rejects the argument that everything took place \u2018without the manager\u2019s knowledge\u2019. Following her application for the vacant post, correspondence took place via several employees and the employer\u2019s official email address, so that the woman was entitled to rely on the assumption that an authorised person was acting on behalf of the employer.<\/p>\n The subdistrict court then assessed whether the notice of termination dated 4 February 2026 had been lawfully given within the probationary period. Whilst an employer may terminate the employment contract without the employee\u2019s consent during the probationary period, the subdistrict court concluded that this was not the case here for several reasons.<\/p>\n Firstly, the question arises as to whether a valid probationary period was agreed at all. The written employment contract containing the probationary period clause was only drawn up later, whilst the employment contract itself had already been entered into verbally on 15 December 2025. A probationary period is only valid if it has been agreed in writing, and this was not yet the case at the start of the employment. Secondly \u2013 and even if a valid probationary period is assumed to exist \u2013 that probationary period commences from the actual start of the employment relationship, which was on 15 December 2025, and not from the later date of 5 January 2026 stated in the written contract. A one-month probationary period would therefore have already expired on 15 January 2026. According to the employment tribunal judge, any other interpretation would amount to the probationary period being able to be extended \u2013 contrary to the law and its intended purpose \u2013 simply by including a later commencement date in the written agreement. The notice of termination dated 4 February 2026 therefore took place, in both scenarios, after the probationary period had expired and is for that reason invalid; the subdistrict court also classified the employer\u2019s \u2018withdrawal\u2019 of the offer as an invalid notice of termination.<\/p>\n As the notice of termination is not legally valid and the woman did not consent to it, the subdistrict court awards her fair compensation, compensation for wrongful termination and a transition payment. The fair compensation is set at one month\u2019s salary (\u20ac2,565 gross, including holiday pay), taking into account that, as of 1 March 2026, the woman had already found other, comparably paid work, meaning that her loss of earnings had already been largely compensated by the compensation for unlawful termination. Furthermore, the period of employment had been short. The compensation for improper termination is set at the salary for the notice period (\u20ac4,763.05 gross) and the transition payment at \u20ac208.09 gross.<\/p>\n The undisputed arrears of wages for December, January and February (\u20ac2,786.72 gross) and the compensation for 30.5 hours of unused holiday entitlement (\u20ac564.25 gross) were also awarded, in each case increased by a statutory surcharge capped at 25 per cent. However, the subdistrict court did reject the claim for compensation relating to a promised lease car. The written agreement did not stipulate any right to a lease car, and the correspondence merely mentioned the possibility of one, whilst it remained unclear when, what type of car and under what conditions it would be provided. Furthermore, the woman had failed to demonstrate sufficiently that she had suffered any loss as a result.<\/p>\n