A probationary period is a period at the beginning of an employment contract intended to determine whether the employer, employee and the position are a good fit. During this period, both the employer and the employee can terminate the employment contract with immediate effect, bypassing Dutch employment law’s strict dismissal rules. Therefore, probationary periods are only allowed if the following criteria are met:

• Agreement in writing

The probationary period needs to be agreed upon in writing. 

• Maximum length of the probationary period

The maximum permitted duration of the probationary period depends on the duration of the employment contract. If the employment contract lasts for 6 months or less, no probationary period is permitted. If the employment contract lasts between 6 months and 2 years, the maximum permitted probationary period is 1 month. For employment contracts that last for more than 2 years, including those of indefinite term, a probationary period of a maximum of 2 months is allowed.

Deviation from this rule is only possible in a collective labour agreement or by or on behalf of a competent administrative authority.

The length of the probationary period should be equal for both parties.

• Subsequent contracts or employers

In principle, it is only possible to agree upon a probationary period in the first employment contract between the employer and the employee. It is not allowed to add a probationary period in a subsequent contract. There is an exception to this rule, namely, when the subsequent employment demands a vastly different skill-set and different responsibilities from the employee than the contract(s) before. The probationary period can then be used to ‘test’ whether the employees is fit for his new position.

If an employer should be considered a subsequent employer (the employee performs similar work, sometimes even at the same workplace, for the new employer as he did for his old employer) the same principle applies; a probationary period is not allowed unless a vastly different skill-set is required.

What if the probationary period clause does not meet the above-mentioned criteria?

The consequence of not meeting the above-mentioned criteria is very harsh. If any of these criteria is not met, the probationary period clause is void. This means that in court it will be considered to have never existed and neither party can call upon it.