Dismissal in the probationary period means that both employer and employee can pull the plug on the partnership immediately. This can be done without notice and without a complicated procedure at the UWV or the subdistrict court. So it is a quick way out if, in practice, the match turns out not to be as good as hoped after all.
What probationary period dismissal exactly entails
The probationary period is essentially an introductory period. Think of it as a kind of trial run for both parties. It gives the employer a chance to see if the new employee really fits into the team and the job. At the same time, the employee can discover whether they like the job and the company culture.
If either of them comes to the conclusion that it is not a good match, the law offers a low-threshold way to end the collaboration. This flexibility is the main feature of the probationary period. The dismissal can be given at any time during this period, after which the employment contract ends immediately. A preventive dismissal test, which is mandatory in a normal dismissal, is not necessary here.
The legal duration of the probationary period
Although the rules on dismissal are flexible, the probationary period itself is strictly bound by legal time limits. The maximum permitted duration is directly related to the length of the employment contract. Be careful: a mistake in the duration of the probationary period invalidates the entire clause. The employee then enjoys full dismissal protection from day one.
The basic rules are as follows:
- Contract shorter than 6 months: No probationary period allowed.
- Contract of 6 months to 2 years: A probationary period of up to 1 month.
- Contract for 2 years or more (or indefinite): A probationary period of up to 2 months.
In practice, this therefore means that, as an employer, you can dismiss an employee without notice and without having to go through the UWV or the courts.
The probationary period is not called the ‘iron probation’ for nothing. This emphasises how strict the legal requirements are. A minor deviation, such as too long a duration, immediately renders the clause null and void.
Maximum probationary period per contract duration
To make it even clearer, we have put the rules in a table. So you can see at a glance which probationary period is allowed for which type of contract.
| Duration of Employment Contract | Maximum probationary period |
| Shorter than 6 months | No probationary period |
| Exactly 6 months | No probationary period |
| Longer than 6 months but shorter than 2 years | 1 month |
| 2 years or more | 2 months |
| Permanent employment contract | 2 months |
| Temporary contract without end date (e.g. project contract) | 1 month |
It is crucial that these terms are correctly stated in the written employment contract. Without a valid, written probation clause, there is simply no probationary period and therefore no dismissal in probation can take place. This lays the foundation for the rights and obligations we will discuss later in this article.
The conditions for a valid probation clause
A probationary period may seem like a standard clause in an employment contract, but it is anything but a given. The law imposes strict requirements on it. If you don’t meet all the conditions, the probation clause is “null and void”. In legal language, that means it never existed.
In the legal world, we also call this the ‘iron probation’. That term emphasises that there is no room for error or flexibility. Compare it to building a house: the foundation has to be perfect. If one crucial part is missing or misplaced, the whole structure is unstable and invalid. So for a probationary dismissal, a watertight clause is the absolute basis.
The written requirement
The most important requirement of all is that a probationary period must always be agreed in writing. A verbal agreement on this has no legal value whatsoever. The clause must therefore be set out in black and white in the signed employment contract or in an applicable collective bargaining agreement (CAO).
This written requirement is there to ensure clarity and avoid discussions afterwards. Both parties then know exactly where they stand and what the ground rules are at the start of employment. Without a written document, there is simply no probationary period and the employee enjoys full dismissal protection from day one.
Equality for employer and employee
Another fundamental rule is that the probationary period must be of equal length for both parties. It is not permissible to agree on a probationary period of one month for the employee and two months for the employer. This would upset the very balance that the legislator wants to protect.
A probation clause that sets a different duration for employer and employee is completely void. Not only does the longer period lapse, but the entire clause is considered invalid.
This equality principle underlines the purpose of the probationary period: it is a mutual acquaintance period. Both the employer and the employee should be given the same time to determine whether the cooperation is a good match. Any deviation from this immediately invalidates the clause.
The right duration for the right contract
As we have already seen, the maximum duration of the probationary period is strictly linked to the length of the employment contract. A common and costly mistake is to include a probationary period in a contract that is too short for it.
Imagine the following situations:
- Six-month contract: An employer hires someone for exactly six months and adds a one-month probation clause. This is not allowed. The law states that contracts of six months or less cannot include a probationary period at all.
- One-year contract: An employer agrees a probationary period of two months for a one-year contract. This too is wrong. For contracts shorter than two years, the maximum probationary period is one month.
In both cases, the consequence is harsh and clear: the probation clause is null and void. The employee cannot be dismissed by invoking the probationary period. If the employer does so anyway, the employee can successfully challenge the dismissal. Applying these rules correctly is essential to avoid legal problems. That is why expert advice, as we offer at Law & More , is vital when drafting employment contracts.
Doing a probationary dismissal correctly
Although the rules for a probationary dismissal may seem lenient, it is crucial to handle it carefully and professionally. The idea that you have complete discretion as an employer is a misconception that can result in tedious and costly legal discussions. A correct approach not only protects your organisation but also shows respect for the employee.
The process does not start with a formal letter, but with a personal conversation. That is the only respectful way to deliver this news. Schedule a quiet moment for this, in a place where privacy is guaranteed. Resigning via an app or a short e-mail is out of the question and can lay the groundwork for a disturbed relationship.
Conducting the dismissal interview
During the conversation, it is important to be direct and clear. Don’t beat around the bush. Start by stating that you have bad news and that you have decided to terminate the employment contract during the probationary period.
This is followed by an explanation. Although, strictly speaking, a reason for the dismissal is not legally required for validity, it is still wise to give it. It provides clarity to the employee and helps with processing. Moreover, the employee depends on this reason for any WW application to the UWV.
A clear, factual justification also reduces the chances of a legal conflict. Be honest and concrete. Avoid vague feedback and focus on observable behaviour or objective results that did not meet expectations.
Make sure the reason you give is objective and non-discriminatory. A dismissal should never be based on, for example, ethnicity, religion, pregnancy or chronic illness. Even with a valid probationary period, the ban on discrimination remains in full force.
The written confirmation
After the personal interview, a written confirmation is indispensable. This document is the formal proof that the employment has been terminated and is a crucial piece for both your own administration and for the employee.
What should be in this letter?
- The confirmation: Clearly state that the employment contract is terminated as of a specific date, invoking the probationary period clause.
- The reason: Repeat the reason for dismissal you gave in the interview. Make sure you are consistent in this.
- Practicalities: Provide information about the final settlement, such as payment for hours worked, accrued holiday pay and any outstanding holidays.
- Handing in property: Describe the procedure for handing in company property such as a laptop, phone or access card.
This written record gives both parties certainty. Recent legal examples show that a sloppily communicated probationary dismissal can quickly lead to disputes. Employers who fail to record the reason or record it unclearly expose themselves to potential claims. This again highlights the importance of a thorough procedure that is not only legally sound but also does not lose sight of the human dimension.
The settlement of the contract naturally includes the financial side. The employee is entitled to wages up to and including the last working day. In addition, the final settlement should include payment of accrued holiday pay and the value of untaken holidays. An employee is generally not entitled to transitional compensation when dismissed during the probationary period; this right only arises after the probationary period. A careful and quick financial settlement contributes to a professional conclusion of the working relationship.
Your rights as an employee in case of dismissal during probationary period
When you are told that your contract is being terminated, it can feel like the ground is sinking under your feet. Especially during the probationary period, this news often comes unexpectedly. Yet, as an employee, you are not completely empty-handed. The law provides you with specific rights to get clarity and take your next steps.
The first and most fundamental step is to understand the reason behind the probationary dismissal. Although an employer may terminate the employment contract immediately, you do not have to be kept in the dark. Knowing the reason is not only important for your own processing, but also crucial for any subsequent steps.
The right to a clear reason
Your employer is legally obliged to communicate the reason for the dismissal to you in writing if you ask for it. This is an important right. So always ask for this, even if the reason has already been explained verbally. A written statement ensures absolute clarity and prevents misunderstandings.
Moreover, this statement is an essential document for your application for WW benefit. This is because the UWV wants to know exactly why the employment ended in order to assess whether you are entitled to benefit. A vague or missing reason can delay this process unnecessarily. A practical advice: immediately after the dismissal interview, ask for a written confirmation of the dismissal and the specific reason by e-mail.
Claiming unemployment benefit after probationary dismissal
Fortunately, a dismissal during the probationary period does not automatically mean that you are not entitled to WW benefit. If you meet the conditions, you may simply be eligible. The UWV tests your application against a number of fixed criteria.
You must meet the following conditions:
- You are insured for unemployment, which is usually the case if you were employed.
- You worked for at least 26 weeks in the last 36 weeks before you became unemployed (the weeks requirement).
- You did not become unemployed through your own fault. A dismissal at the initiative of the employer during the probationary period is generally not considered culpable.
Important to know: resigning during the probationary period does generally lead to culpable unemployment, which means that your right to WW benefits is lost. So the situation is completely different when the employer takes the initiative.
Make sure you register as a jobseeker with the UWV immediately after your last day of work. Then apply for WW benefit. This can be done up to a week after your last working day at the latest. Do not wait too long with this, as a late application may have financial consequences.
The final financial settlement
Besides the emotional and practical settlement, you are of course also entitled to a correct financial closure. Your employer must prepare a final account that settles all outstanding items. You are entitled to payment of your wages up to and including the very last day you were employed.
The final statement must include the following elements:
- Salary: The payment for the days worked in the last month.
- Holiday pay: You are entitled to accrued holiday pay (usually 8% of your gross pay) for the period you worked.
- Holiday days: The value of your accrued but untaken holiday days must be paid out.
A transition compensation does not apply in case of dismissal during the probationary period if the initiative lies with the employee. The right to transition compensation does apply if the initiative for dismissal lies with the employer.
Prohibited reasons for dismissal in the probationary period
The freedom to terminate an employment contract during the probationary period may feel almost limitless, but there are important legal limits. While the threshold for a termination during the probationary period is low, the reason should never conflict with fundamental legal principles. Thus, the freedom of termination should not be abused for purposes explicitly prohibited by the legislator.
You can see the probationary period as a kind of introductory period where both parties can easily take the exit. Extensive justification is not necessary, but the rules of the law apply unimpaired. A dismissal should never be based on discrimination; that is an absolute red line.
Discrimination as an unlawful ground for dismissal
The core of the restriction lies in the prohibition of discrimination. An employer may not dismiss an employee based on personal characteristics unrelated to the job. The General Equal Treatment Act is crystal clear on this.
This means that a dismissal during the probationary period is unlawful if it arises from reasons such as:
- Pregnancy: Terminating the contract because an employee turns out to be pregnant is a classic and prohibited example of discrimination.
- Origin or nationality: Firing an employee because of his or her ethnic background is directly discriminatory.
- Religious or political beliefs: Personal beliefs should never be the reason for dismissal. A recent court case further confirmed this: an employer who dismissed an employee because of political statements made on social media had to pay damages of over €45,000.
- Chronic illness or disability: It is illegal to dismiss an employee because of a long-term illness or disability, unless that person is unable to perform the job – even with adjustments.
An employer who nevertheless dismisses on one of these grounds is acting seriously culpable. The employee can challenge the dismissal, which can lead to substantial fair compensation awarded by a judge.
Sickness during the probationary period: a grey area
A common question is: what about sickness? Can you simply dismiss an employee who calls in sick during their probationary period? The short answer is yes, you may. This is because the legal prohibition on giving notice during illness, which applies outside the probationary period, does not apply here.
However, the crux lies in the reason for dismissal. An employer may terminate the contract because there is not a good match, even if the employee happens to be ill at the time. However, the illness itself should never be the underlying reason.
Suppose an employee reports after two weeks that he has an aggressive form of cancer. The next day, the employer terminates the contract ‘because of the situation that has arisen’. A judge will then quickly rule that there is a direct link between the illness and the dismissal. This is discriminatory and therefore prohibited, as was shown in a case at the Limburg District Court, where an employee was awarded substantial fair compensation.
The burden of proof here is often on the employee, which can make things difficult in practice. If the employer can cite a credible, non-discriminatory reason – such as inadequate performance that had already been noticed before the sick report – it is in a stronger legal position.
Misuse of power
Besides discrimination, there is another limit: abuse of power. This is a broader legal term that arises when the employer uses the dismissal option for a purpose for which it was not intended.
A well-known example is an employer who hires someone to quickly complete a specific project, with the preconceived plan to fire them afterwards during the probationary period. Here, the probationary period is not used to get to know each other, but as an abusive means of hiring temporary staff without the normal obligations.
Proving abuse of authority is legally complex. The employee must prove that the employer used the probationary period with an unfair intention. While this can be difficult, successful reliance on it can lead to damages.
Do you feel that your dismissal during the probationary period was unlawful? If so, it is crucial to have your situation assessed. You can always contact the experts at Law & More to discuss your legal position.
Resigning yourself during the probationary period
A probationary period cuts both ways. It is not only a period during which your employer checks whether you fit into the team; it is just as much an opportunity for you. Does the job turn out not to be what you expected in practice after all? Does the company culture not suit you, or are the nice promises from the job posting not fulfilled? Then dismissal during the probationary period gives you the flexibility to pull the plug yourself and quickly take another direction.
Like your employer, you do not have to observe a notice period. You can terminate the employment contract with immediate effect. If you give notice today, the contract will also end today.
How do you handle this professionally?
Although you can even give your resignation verbally, that is not the wisest route. A professional and careful approach avoids misunderstandings and ensures that you walk out the door with your head held high. With a few simple steps, you can arrange this neatly.
- Schedule a face-to-face meeting: Ask your supervisor for a short, face-to-face meeting. Breaking the news face-to-face is more respectful than via an email or phone call.
- Be clear and direct: In the conversation, state clearly that you have decided to terminate the employment contract during the probationary period. You do not owe an extensive justification, but a brief, matter-of-fact explanation is usually appreciated.
- Confirm it in writing: After the interview, send a short e-mail or a formal letter of resignation. In it, you confirm your resignation and clearly state the date on which the contract ends. This document is your proof and creates clarity for the administration.
This approach ensures proper completion and leaves a professional impression, which is always valuable for your network.
The most important consideration when resigning yourself is the impact on your entitlement to unemployment benefits. This is a crucial point that can strongly influence your decision.
The consequence for your WW benefit
This is where the devil is in the tail. When you throw in the towel on your own initiative, the UWV almost always sees this as ‘culpable unemployment’.
Specifically, this means that you are basically not entitled to WW benefit. The reasoning behind this is that you caused the unemployment yourself and could have prevented it. This is a substantial difference from a dismissal at the initiative of the employer; in that case, you do usually retain your WW entitlement.
Only in very exceptional cases, for example if you can prove that there was an unworkable situation, do you stand a small chance of receiving benefits. However, this is difficult to prove. So resigning yourself is a financial gamble. Carefully weigh your dissatisfaction with the job against the risk of being left without income. A well-considered decision is essential here.
Frequently asked questions on probationary dismissal
Probationary dismissal is one of those topics in employment law where there are always many questions. This is logical too, because the rules are different from the rest of your employment. We have listed the most pressing questions for you, so that you will quickly have a clear answer to your specific situation.
Is a verbal dismissal in the probationary period valid?
Yes. A dismissal given verbally during the probationary period is in principle just valid. The law does not stipulate that the notice must necessarily be on paper. So as soon as the words are spoken, the employment contract ends immediately.
But note that as an employee, you do have the right to ask for a written confirmation of the reason. This is a crucial detail. After all, you will need this document if you want to apply for unemployment benefits from the UWV. So don’t hesitate and always ask for this.
Can I be dismissed if I am ill during my probationary period?
Yes, this is also allowed. The ban on dismissal during illness, an important protection for employees, does not apply during the probationary period. So an employer may simply terminate the employment contract, even if you have called in sick at that time.
However, there is an important ‘but’ to this. The reason for dismissal may never be the illness itself. If your employer dismisses you because of your (chronic) illness or, for example, pregnancy, there may be discrimination. In that case, the dismissal may be unlawful, even if it happens during the probationary period.
The key question is always: what is the real reason for the dismissal? The probationary period is not a licence for discrimination. The dismissal must always be based on work-related grounds, such as your performance.
My six-month contract contains a probation period, is that allowed?
No, absolutely not. The law is crystal clear on this: an employment contract of six months or less may never include a probationary period.
Does such a contract contain a probationary period anyway? Then that clause is “null and void”. Legally, it never existed then. That means you enjoy full dismissal protection from day one and therefore cannot be dismissed simply on the basis of that invalid probationary period.