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By Jan Dop, LL.M.
Russell Advocaten, B.V.
Amsterdam, Netherlands

When concluding an employment contract, a probationary period can be agreed upon. What will be the consequences if the employee performs activities before this probationary period has started?

Probationary Period

The purpose of the probationary period is for the employer and employee to get to know each other better before being bound to each other. During the probationary period, both the employer and the employee can terminate the employment contract. During this period the rules regarding employment protection do, in principle, not apply. However, if requested, the reason for termination has to be communicated.

These are the requirements for a probationary period clause:

  1. The probationary period has to be agreed upon in writing.
  2. The probationary period has to comply with the statutory periods.
  3. The probationary period has to be of the same length for both parties.

The statutory periods are:

  • In employment contracts for a period longer that six month but shorter than two years: a maximum of one month.
  • In employment contracts for a period longer than two years or more: a maximum of two months.
  • In employment contracts for an indefinite time: a maximum of two months.

In employment contracts of a period shorter than six months no probationary period may be included. The Rutte III cabinet intends to extend the probationary periods for employment contracts of two years or longer and for an indefinite period.

If these requirements are not met, the probationary period clause will be void.

Activities Performed Before the Commencement of the Employment Contract

What happens if the employee performs work for the employer before the employment contract has started? Does the probationary period agreed upon apply or does in that case the probationary period commence earlier?

In a recent decision, it was determined that the probationary period begins to run when the employee actually starts to perform the activities he or she was employed for, even if the probationary period starts at a later date according to the employment contract. Indeed, as soon as the employee performs work, he or she can be “tried”.

Employers therefore should be careful when asking employees to perform activities before the employment commences. If the probationary period starts earlier (and thus ends at an earlier date) you might terminate the employment contract on grounds of the probationary period clause when the probationary period has already ceased. In that case, the employee would be entitled to reinstatement of employment and continued payment of wages.

Relevant Activities

When would a court assume that the probationary period has expired before the commencement of the employment contract? The court will assess three elements of the employment contract: work, wages and authority.

  • Work: It may be work if the employee has taken part in a training course or attended a presentation, regardless of the duration. However, because of a brief, general introduction to the organisation the probationary period does not start earlier.
  • Wages: Paying the employee compensation can also be a hint that the probationary period has started, especially if it is based upon the wages agreed upon in the employment contract.
  • Authority: An employer-employee relationship will quickly be assumed, as it will be hard for the employee to refuse to meet urgent requests of the future employer to start earlier.

More Information

Would you like to include a probationary period clause in your employment contracts or would you like your employees to perform activities before the employment contract has started and would you like to know whether or not the trial period starts earlier? Or would you like us to draft a model contract? Please contact us.