Otpuštanje tijekom probnog roka u Nizozemskoj

During a valid probationary period (proeftijd) the employer and the employee can each end the employment contract with immediate effect, without a notice period, without UWV permission and without a court order (Article 7:676 of the Dutch Civil Code, BW). The main exception: if the probationary clause does not meet the strict requirements of Article 7:652 BW, it is void, and the employee has full dismissal protection from the first day.

This article explains when the clause is valid, how notice is given, what the employee is still entitled to, where the limits lie and how to challenge a probationary dismissal within the two-month deadline.

What does dismissal during the probationary period mean?

It means the contract ends on the day notice is given. No notice period applies, no reasoned dismissal file is needed, and the employer does not have to ask the UWV or the subdistrict court (kantonrechter) for permission.

Under Article 7:670a(2)(b) BW the statutory prohibitions on giving notice during illness, pregnancy and works council membership do not apply to a dismissal during the probationary period. The ban on dismissing an employee because he or she takes statutory leave, such as parental leave, does still apply (Article 7:670(7) BW), as do the equal treatment rules.

Notice can be given at any time within the agreed period, even on the first working day. Notice given one day after the period has expired is an ordinary notice without permission and can be annulled. The period runs from the start date of the contract, not from the date of signature.

Kada je uvjetna klauzula valjana?

Article 7:652 BW sets four requirements, and all must be met. If any one is not met, the whole clause is void (Article 7:652(8) BW), not just the excess.

• The clause is agreed in writing, in the contract or in an applicable collective labour agreement (cao).
• It is the same length for both parties.
• It does not exceed the statutory maximum for the type of contract.
• It is not a repeat probationary period in a follow-on contract for the same work.

Koja je maksimalna duljina?

The maximum depends on the contract. Under Article 7:652(7) BW a cao can depart from the one-month maximums in the table to the employee’s disadvantage; an individual contract cannot.

Can a new contract contain a new probationary period?

Only if the new contract clearly requires different skills or responsibilities (Article 7:652(6)(b) BW). The same restriction applies to a new employer that must be regarded as the successor of the previous one for the work concerned, for example when an agency worker is taken on directly.

How is notice given?

The law prescribes no form: an oral notice is valid and ends the contract immediately. Under Article 7:676(2) BW the employer must state the reason in writing if the employee asks for it.

In practice, a short conversation should be followed the same day by an e-mail or letter confirming the end date, the reason, the final settlement and the return of company property. The reason matters twice: the UWV uses it to assess the claim for unemployment benefit, and a court uses it as the starting point if the dismissal is challenged.

What is the employee still entitled to?

The employee keeps the right to a written reason on request, a final settlement and, if the employer took the initiative, a transition payment (transitievergoeding).

The final settlement covers salary up to the last day, accrued holiday allowance and untaken holiday days. Under Article 7:673 BW the transition payment is due whenever the employer gives notice, from the first day of employment; after a few weeks it is small, but it must be paid. It is not due if the employee resigns, unless that was caused by seriously culpable conduct of the employer. See our article on the Nizozemska tranzicijska isplata.

Can the employee claim unemployment benefit?

A dismissal at the employer’s initiative does not in itself bar unemployment benefit (WW). Under Article 17 of the Unemployment Insurance Act (WW) the employee must have worked at least 26 of the 36 weeks before unemployment, often on the strength of earlier jobs. Register with the UWV promptly and attach the written reason.

What remains prohibited?

The probationary period frees the parties from dismissal procedures, not from the rest of the law. A dismissal based on a prohibited ground, such as pregnancy, disability or chronic illness, race, religion or age, is unlawful even if the clause is valid.

If the employee puts forward facts from which discrimination can be presumed, the employer must prove it was not the reason. A dismissal immediately after a pregnancy announcement or a diagnosis, with no earlier recorded criticism, readily meets that threshold. An employee who is ill may be dismissed, but not because of the illness.

How do you challenge a probationary dismissal?

The employee can ask the subdistrict court to annul the notice or to award fair compensation (billijke vergoeding) instead. Under Article 7:686a(4) BW the request must be filed within two months after the contract ended; a claim for the transition payment must be filed within three months.

These are expiry periods: a letter or negotiations do not stop them. The two arguments that succeed most often are that the clause was invalid, or that the clause was valid but the reason was prohibited.

Što biste trebali provjeriti kao zaposlenik?

Most challenges turn on the documents and the dates.

• Is the probationary clause in writing, equal for both parties and within the maximum for your contract?
• Did you work for this employer, or through an agency in the same role, before this contract?
• Was notice given before the period expired?
• Have you asked for the reason in writing?
• Does the final settlement include holiday pay and a transition payment?
• Is the two-month deadline in your diary?

Što biste trebali provjeriti kao poslodavac?

Most failed probationary dismissals stem from template contracts and an empty file.

• Does the clause match the contract type? A two-month clause in a one-year contract is void.
• Is this a follow-on contract or a former agency worker? Then a new clause is usually not allowed.
• Is the notice given within the period, which cannot be extended, not even for illness or holiday?
• Have you recorded performance concerns before the dismissal?
• Can you give a consistent written reason that does not touch a prohibited ground?

What can we do for you with dismissal during the probationary period?

Our employment lawyers advise employers and employees, in English and Dutch. Read more in our Vodiči za nizozemsko radno pravo.

• We check whether the probationary clause in your contract is valid.
• We draft the dismissal confirmation and the written statement of reasons.
• We calculate the final settlement and the transition payment.
• We assess whether the dismissal was based on a prohibited ground.
• We file or defend the request at the subdistrict court within the two-month deadline.

Rezime

• During a valid probationary period either party can end the contract immediately (Article 7:676 BW).
• The clause must be in writing, equal for both parties and within the statutory maximum; otherwise it is void (Article 7:652 BW).
• The employer must give the reason in writing on request; the transition payment is due if the employer gave notice.
• Discriminatory dismissal remains unlawful; challenge it within two months (Article 7:686a(4) BW).

Često postavljana pitanja