Entering into a working relationship with an employer or employee can feel like a big commitment. Because what if you don’t like the job? Or what if it appears that the employee in question is not as suitable for the job as you thought? For those cases, the law allows you to agree on a trial period. But can you actually always agree on a trial period, and are the possibilities for dismissal during the trial period unlimited? No, that is not the case.. Below, we discuss some do’s and don’ts around the trial period.
Agreeing upon a trial period clause
The inclusion of a trial period clause is subject to some requirements. For instance, the trial period must be the same for both parties, and the trial period clause must be agreed in writing. Although the written requirements are not as strict as when including – for example – a non-compete clause, the safest way is to include the clause in the employment contract. A trial period cannot be agreed if the employment contract is shorter than six months.
Don’t: include a trial period in a second employment contract unless….
If, after a first contract, a succeeding employment contract is entered into between an employee and the same employer, it is not possible to agree on a trial period with that employee again. After all, you have already had that opportunity in the first contract. This would only be different if the new employment contract clearly requires different skills or responsibilities.
Do: consider the requirements
Although the requirements are limited in a sense, it is important to take them into account. After all, if the clause does not meet the requirements in the law, it is void, and it is as if the clause was not agreed. Further requirements are listed below.
Duration of the trial period
The maximum duration of the trial period clause is prescribed by law. A trial period of two months may be agreed in an employment contract for an indefinite period. The same applies to contracts longer than two years. For contracts between six months and two years, a maximum of one month applies; this may be deviated from by a collective labor agreement (CLA).
The rules on the length of the trial period are quite strict. For this reason, the trial period is also referred to as an ‘iron’ trial period. Below, we list some do’s and don’ts regarding the length of the trial period.
Don’t: suspend the trial period
Suppose an employee falls ill exactly during the trial period. Is it then possible to suspend the trial period by the duration of that illness, on the basis that during that period you have not yet been able to test whether the employee is suitable for the job? While the thought is understandable, it follows from higher case law that this is not an option. It is not possible to temporarily suspend the trial period.
Don’t: be careful about already letting the employee work before the trial period
Although the duration of the trial period may be clearly included in the employment contract, it is important to remain alert to the start date of the trial period. The trial period may already start before the start date in the employment contract. In that case, the trial period also ends earlier. This is the case when work is performed prior to the start date and the employee already receives salary for that work (e.g. in the form of time-for-time). So it is recommended to pay attention to this!
Do: be on time!
It may sound obvious, but be on time when invoking the trial period. A termination during the trial period is only effective if it reaches the other party before the end of the trial period. Too late is in principle too late. Only under special circumstances, a claim of an employee for strict application of the term will be deemed unacceptable by the standards of reasonableness and fairness. But, those circumstances are subject to high requirements.
Termination during the trial period
It follows from the law that, during the trial period, both parties may terminate the employment contract with immediate effect. A termination during the trial period does not require a reasonable ground. In fact, you don’t even have to give a reason for the termination. This is only different if the employee would ask the employer for the reason of termination. In that case, the employer is obliged to give the reason to the employee in writing.
Don’t: avoid abuse
And when it comes to that reason, it is important that the reason for termination is not related to a termination prohibition that prohibits termination ‘because of’ certain circumstances and/or that the reason is not discriminatory. To illustrate this: During the trial period, terminating ‘during’ illness is allowed, but the reason must not be related to the illness (‘because of’).
Do: link the reason to the rationale of the trial period
Given the above, we recommend matching the reason for termination to the rationale behind the trial period. The rationale for including a trial period is to give parties a chance to find out about each other’s capacity/suitability. Therefore, a reason for termination during the trial period could be that the employee does not seem suitable for the position, or that an employer has not seen enough to ascertain that suitability.
In short
All in all, the trial period clause is a clause covering a limited time period, but with some points of attention. Do you have questions about including or invoking a trial period clause, or would you like to know if, for instance, the trial period clause can be invoked even before the start of the employment contract? Feel free to contact us!
