The 5 most common mistakes made when drafting an employment contract

We regularly come across provisions in employment contracts that are unclear, contrary to the law and/or invalid. Below is an overview of the 5 most common mistakes when drafting an employment contract that we encounter in practice.

No legally valid probationary period 2.

The legal terms of a probationary period are in the law. Click here for our blog on the terms of a probationary period clause. Briefly, the probationary period must be agreed in writing, it is the same for employee and employer, and there is a maximum duration. In a fixed-term employment contract shorter than 6 months, no probationary period is allowed. For fixed-term employment contracts longer than 6 months and shorter than 2 years, a probationary period of 1 month is permitted. For employment contracts of 2 years or longer (including employment contracts of indefinite duration), a probationary period of 2 months is permitted. If the probationary period does not meet the conditions, then it is null and void and therefore there is no probationary period and termination will therefore only be possible according to the "normal" legal dismissal rules.

The wrong notice period 2.

The law prescribes the applicable notice period. This is one month for an employee. That of the employer depends on the length of employment. We often see that a longer notice period is included for the employee. However, this is only allowed if it is also included that the employer's notice period is at least double. So, for example, it cannot be the case that a notice period of 2 months is included in the employment contract for both parties. If this is not properly included, the statutory notice period of one month for the employee still applies. Please note that collective bargaining agreements may have notice periods that deviate from this legal provision.

Referring to documents that are not (demonstrably) handed over 3.

The employment contract often states that the employee is bound by certain internal documents, such as the company regulations, a bonus scheme, absence regulations and/or behavioral regulations. It is important that these documents are actually given to the employee and that this can be demonstrated, for example, by sending this to the employee's active e-mail address and/or having the employee sign for receipt. If it cannot be proven that the employee is familiar with its contents, this can cause ambiguity and problems later on. Therefore, also ensure that updated versions of the relevant documents are demonstrably handed over. This can also be via an e-mail and, for example, access to the document via Intranet, for example.

Inadequate justification in competition/relationship clause 4.

Many employers want to include a non-competition/relationship clause in the employment contract, to ensure that after the employment ends, the employee is not allowed to perform competitive work (for a certain period of time) and/or maintain contact with relations of the employer. With a fixed-term employment contract, a competition/relationship clause is in principle not allowed unless there is a compelling business interest justifying it. This interest must be clearly and well motivated, otherwise the non-competition clause is not legally valid. It must be tailored to the specific employee and therefore cannot be a general justification included in all employment contracts. However, it remains the case that a judge can still annul a valid non-competition clause if it is unreasonably onerous for the employee. The bar for the employer is therefore quite high.

Although no substantiation of the weighty business interest is required for a fixed-term employment contract, it remains important that the clause be formulated with due care. Any ambiguities or errors in the clause are at the employer's risk. It is therefore important for both temporary and permanent contracts to think carefully about the conditions and the correct wording of the non-competition clause.

No interim notice clause included 5.

A fixed-term employment contract can only be terminated early if there is an early termination clause in the employment contract. This applies to termination by either the employer or the employee. If this is not included and the contract is terminated anyway, the terminating party is liable to pay damages to the other party. This means that the terminating party owes the other party the amount of wages that had to be paid until the original termination date.