Trial period

Trail period as of 1 January 2015

Since the Work and Security Act came into effect, it is no longer possible to include a trial period in an employment contract for a definite period of 6 months or less.
The underlying thought is that such a short-term contract is already a source of uncertainty for the so-called flexible workers and that in such cases it is undesirable to add to that uncertainty with a trial period clause.
To prevent nullification of the trial period clause, the following rules should be followed:

1. 2 months trial period for an employment contract for 2 years or more;
2. 1 month trial period for an employment contract for less than 2 years;
3. 1 month trial period, if the expiry of an employment contract for a definite period has not been defined for a certain date;
4. No trial period of the employment contract is for 6 months or less.

A Collective Labour Agreement can still deviate from sub 2 and sub 3 (also see: CAO Deviations).
In addition, the case law of the Supreme Court – that a trial period clause is invalid, if this is included in a consecutive employment contract between an employee and the same or a successive employer – is laid down in the legislation. However, this does not apply if a new employment contract requires significantly different skills or responsibilities. In such cases the employer is not yet aware of the employee’s skills for the new position of the employee. Therefore, trial periods are valid in such cases.

Situation prior to 1 January 2015

In employment contracts for a definite period of time concluded before 1 January 2015, it was possible to include a trial period as follows:

1. 2 months trial period for an employment contract for 2 years or more;
2. 1 month trial period for an employment contract for less than 2 years;
3. 1 month trial period, if the expiry of an employment contract for a definite period has not been defined for a certain date;
4. No trial period of the employment contract is for 6 months or less.

In case of applicability of a collective labour agreement, one was allowed to deviate from sub 2 and sub 3. Any other deviations were null and void, making dismissal based on a trial period impossible.

Transitional law

As of 1 January 2015, the legal amendments of the trial period are in effect. Trial period clauses agreed before 1 January 2015 will be subject to the former legislation. The new legislation will apply to employment contracts concluded between parties on or after 1 January 2015. The date of the signing of the employment contract determines whether the trial period clause is covered by the former or by the new legislation.

Practical pointers

• If a trial period is desirable, an employment contract for more than 6 months shall have to be agreed, for example for 6 months and 1 day or for 7 months.
• Please note: the notification period applies to an employment contract for 6 months or longer. To determine the term of the temporary employment contract, it is conceivable that the rules on the notification period and the trial period determine the period of the contract. In fact, in such a case a choice has to be made between including a trial period or avoiding the notification period.