Probationary period: what employers can and can’t do
You’ve just hired someone, the first few weeks are almost over and you’re noticing it’s not quite clicking, so you think: good thing there’s a probationary period. Then you dig out the contract and see there’s no probationary period in it, or that it says three months, which is far too long. A probationary period only works if it’s properly arranged before the first working day, and that’s exactly the kind of thing you forget in the rush of hiring.
Below you’ll find how long a probationary period can last, when it’s valid and what you can do if it isn’t working out, in plain English. If you’re hiring for the first time, our article on hiring your first employee gives you the bigger picture.
How long can a probationary period last?
How long a probationary period can last depends on the type of contract, and the maximum is never more than two months. This is what the Dutch government says about it:
Permanent contract: two months maximum
Fixed-term contract of 2 years or longer: two months maximum
Fixed-term contract of more than 6 months and shorter than 2 years: one month maximum
Fixed-term contract without an end date, for example for a project or a replacement: one month maximum
Fixed-term contract of 6 months or shorter: no probationary period allowed
A contract of exactly 6 months falls into that last category, because a probationary period is only possible if the contract lasts longer than 6 months. Also worth knowing: some collective labour agreements (cao) have different rules for fixed-term contracts, so always check whether a cao applies to your organisation.
When is a probationary period valid?
A probationary period is only valid if it’s in writing, so a verbal agreement or a text message isn’t enough. Ondernemersplein, the Dutch government’s information site for entrepreneurs, says it has to be in the employment contract or in the cao. In practice it comes down to this:
The probationary period is in the contract, and the contract is signed before the first working day.
The probationary period is the same length for you and your employee.
The probationary period is no longer than the legal maximum for that type of contract.
The last point is the riskiest, because a probationary period that’s too long isn’t cut back to the maximum. It’s invalid, which means your employee is simply employed without a probationary period. If you then want to part ways, you have to follow the regular dismissal procedure, which goes through the UWV or the court.
Keep the signed contract in the personnel file, you can read how that works in our article on keeping a personnel file.
Can you extend a probationary period?
A probationary period can never be extended beyond the legal maximum, even if you and your employee both agree. If someone falls ill during the probationary period, it simply keeps running, so it doesn’t move along with the number of sick days. Changing the contract during the probationary period to stretch it isn’t a solution either, because courts quickly see that as a disguised extension.
There’s no extra time to be had, but you can use the time you have wisely, for example with a check-in halfway through, so you don’t only find out at the end that you’re on different wavelengths.
Terminating during the probationary period
During the probationary period, both you and your employee can terminate the contract without giving a reason and without a notice period, with immediate effect. You don’t need permission from the UWV, you don’t have to check whether reassignment is possible and you don’t owe compensation for improper notice.
There are a few catches:
Termination must happen before the probationary period ends. If you only give notice once it’s over, the regular dismissal rules apply.
You have to give the reason in writing if asked. You don’t have to bring it up yourself, but if your employee asks, you have to put the reason on paper. That works the other way round too if your employee terminates.
Without a reason is not the same as for any reason. You can’t terminate on a discriminatory ground, and in special circumstances terminating during the probationary period can also be an abuse of power.
A practical tip, though not a legal requirement: terminate in writing and state the date the employment ends.
Illness and pregnancy during the probationary period
Even if your employee is ill, you can terminate during the probationary period, because the prohibition on dismissal during illness doesn’t apply then. The UWV says the same, and adds that the employee may then be entitled to a sickness benefit under the Sickness Benefits Act (Ziektewet). If you do keep someone who’s ill on, the Gatekeeper Improvement Act (Wet verbetering Poortwachter) process simply continues, and you can read how that works in our article on sickness absence in a small business and in our step-by-step guide to the Gatekeeper Improvement Act.
Pregnancy is different, because you can’t dismiss someone for being pregnant or wanting to become pregnant, and that applies during the probationary period too. Ondernemersplein says so in its section on equal treatment, and courts look at this strictly even during a probationary period. If someone makes it plausible that pregnancy was the reason, the burden of proof is on you as the employer. Terminating right after someone has told you they’re pregnant is therefore asking for trouble.
A new contract, a new probationary period?
A follow-up contract doesn’t get a new probationary period in principle, because you’ve already seen your employee at work. The Dutch government mentions one exception: if the new role clearly requires different skills or responsibilities, a new probationary period is allowed. Think of someone who grows from an operational role into a team lead, where it’s about what the job really requires and not about the job title.
The same applies if someone first worked for you through a temp agency, because that can count as successive employment. Even then, a new probationary period is only possible if the job is different. If your employee used to work for you as a freelancer and you want to hire them permanently, also read our article on hiring a freelancer on a permanent contract.
The probationary period from start to finish
A probationary period only helps if you actually do something with it, so these are the moments for your calendar:
Before the start — Sign the contract and work out the end date. Check that the probationary period is in the contract, that it fits the contract length and that you’ve both signed before the first working day. Work out right away when the probationary period ends and put that last day in your calendar and in the file.
Day 1 — Working agreements. Make clear what you expect, so your employee knows what you’ll be looking at at the end of the probationary period.
First weeks — Feedback. Give feedback early, so any negative message doesn’t come as a surprise later.
Halfway — Check-in. Talk about what’s going well, what could be better and whether you both still have a good feeling, and write down briefly what you’ve agreed.
One week before the end — Decide. Make your decision before the last week begins, so you’re not choosing under time pressure on the last day. If you terminate, do it in writing and well before the end, because after that the regular dismissal rules apply.
Where it goes wrong
In practice it rarely goes wrong on the law itself, but on small things in the execution that you only notice when you need the probationary period:
Reusing an old contract template. Two months of probation fits a permanent contract, but copy that into the one-year contract for your next hire and it’s too long, so the whole probationary period lapses.
Having the contract signed after the start. The contract goes out, the employee starts already and the signature follows a week later, while the safest thing is to have the probationary period on paper before the first working day.
Not keeping an eye on the end date. Nobody sends you a reminder, so suddenly the probationary period is over and you’re stuck with the regular dismissal rules.
So run the same quick check on every new contract: does the length fit the contract length, is it signed before the first working day and is the end date in your calendar?
Probationary periods and Heartsome
During a probationary period you want three things in order: the end date, what the contract says and what you agreed in the check-in. Heartsome is HR and recruitment software for small businesses and foundations, made for employers who do HR on top of everything else, so you have these kinds of agreements in one place instead of scattered across emails and that one Excel file nobody dares to touch.
Curious? Take a look at heartsome.co and see for yourself whether it fits.
Frequently asked questions
Can there be a probationary period in a 6-month contract? No, with a fixed-term contract of 6 months or shorter you can’t agree a probationary period. If one is in there anyway, it isn’t valid.
Do I have to give a reason if I terminate during the probationary period? You can terminate without a reason. If your employee does ask for it, you have to give the reason in writing.
Can I terminate someone who is ill during the probationary period? Yes, the prohibition on dismissal during illness doesn’t apply then. The probationary period also simply keeps running during the illness, so it isn’t extended.
What if there’s no probationary period in the contract? Then you don’t have one, even if you talked about it verbally. You can then only terminate under the regular dismissal rules.
What happens if the probationary period is too long? Then the whole probationary period is invalid, so it isn’t automatically cut back to the maximum. Your employee is then employed without a probationary period.
Can I agree a new probationary period in a follow-up contract? In principle no, unless the new role clearly requires different skills or responsibilities.
This article gives a general picture based on current Dutch legislation and is not legal advice. If in doubt, always consult a lawyer or HR advisor.