The terms and conditions of a probationary period clause at a glance

Including a probationary period clause in an employment contract is subject to strict rules. It is important for employers and HR professionals to understand what restrictions apply and when a probationary period clause is valid. In this blog, we discuss the most important aspects of the probationary period clause and conclude with a number of practical tips.

What is a probationary period clause?

A probationary period clause gives both the employer and the employee the option to terminate the employment contract during the probationary period without notice or giving reasons. It is a mutual right, intended to give both parties time to assess the working relationship.

The legal rules for a probationary period clause

The inclusion of a probationary period clause is only permitted under the following conditions.

1. Depending on the duration of the employment contract, the following probationary period is permitted:

• Indefinite period or fixed term longer than two years: probationary period of two months.
• A fixed term longer than six months but shorter than two years: probationary period of one month.
• Fixed term of six months or less: no probationary period permitted.

2. Written record:

A probationary period clause must be laid down in writing, for example in the employment contract or in a collective labor agreement. Verbal agreements about a probationary period are not valid.

3. Equal duration:

The probationary period must be the same for both parties. A probationary period clause whereby the employer has a longer probationary period than the employee is not valid.

Null and void probationary period clauses

If a probationary period clause does not meet the legal requirements, the probationary period is void and therefore does not exist. This is also known as the ‘iron probation period’ theory. This means that when terminating the employment contract, the employer must take into account the regular statutory dismissal system. If the employer fails to do so, this may lead to legal disputes and claims from the employee.

A new probationary period in a subsequent employment contract

In the case of a subsequent employment contract, a new probationary period can only be agreed if the work under the new employment contract clearly requires different skills or responsibilities that were not sufficiently covered by the previous employment contract. This must be properly substantiated by the employer.

Probationary dismissal must not lead to discrimination

As an employer, you are therefore allowed to terminate the employment contract during the probationary period without valid grounds for dismissal. However, termination during the probationary period must not lead to discrimination. It is not permitted to dismiss an employee on the basis of their gender, age, origin, and/or disability. For example, termination during the probationary period is permitted ifduring a chronic illness, but not due to the chronic illness. The employer must be able to demonstrate that there is no connection between the two.

Practical tips for employers

1. Ensure that the probationary period clause is clearly and correctly formulated in the employment contract, stating the duration of the probationary period and referring to the legal basis.
2. If a collective labor agreement applies, check whether it contains specific provisions that deviate from the statutory rules on probationary periods. For example, a collective labor agreement may allow for a longer probationary period.
3. When determining the probationary period, take into account the duration of the contract (and the applicable collective labor agreement provisions). For example: for an employment contract of 6 months and 1 day, a probationary period of 1 month is permitted, whereas this is not possible for an employment contract of 6 months (or less).
4. Document changes in the position. In the case of a subsequent employment contract in a different position, it must be clearly documented that the new position requires different skills or responsibilities. Only then can a new probationary period be valid.
5. Is there a risk of perceived discrimination? Seek legal advice.

Finally

Do you have questions about probationary period clauses, dismissal during probation, or other employment law issues? Please contact our office; we will be happy to assist you.