Dismissal in the probationary period means that either party can end the employment contract with immediate effect, without notice period, without permission from the UWV and without a court order. Article 7:676 of the Dutch Civil Code allows it, and article 7:652 sets the conditions the probationary clause itself has to meet. Those conditions are strict: if the clause is invalid, the dismissal fails with it and the employee has full dismissal protection from the first day. This article sets out when the clause is valid, how notice is given, what the employee is still entitled to, and where the limits lie.

What dismissal during the probationary period means

The probationary period is a mutual trial. It gives the employer time to see whether the new colleague fits the job and the team, and it gives the employee the same freedom to conclude that the work or the organisation is not what was expected. Dutch employment law is built on a high level of protection against dismissal, and the probationary period is the deliberate exception to it.

The practical consequences of that exception are far-reaching. During a valid probationary period neither party has to observe a notice period, so the contract ends on the day notice is given. The employer does not need prior permission from the UWV for a dismissal on economic grounds or for long-term incapacity, and does not have to ask the subdistrict court to dissolve the contract on one of the statutory grounds. The reasoned dismissal file that is otherwise indispensable is not required either. And the statutory prohibitions on giving notice, which normally protect an employee who is ill, pregnant, on parental leave or a member of the works council, are expressly set aside for the duration of the probationary period.

Notice may be given at any moment within the agreed period, including on the first working day and, in principle, even before the employee has started work, provided the contract has been concluded and the clause is valid. What the law does not permit is giving notice one day after the probationary period has expired: from that moment the ordinary regime applies in full, and a dismissal without permission or a court order is simply invalid. Counting the days matters, and the period runs from the moment the employment contract takes effect rather than from the date of signature.

This article deals with the main line. Two companion articles go into the practical detail from each side: our guide to the probation period and dismissal under Dutch labour law and, for employers, our article on dismissing an employee during the probation period.

When is a probationary clause valid

Article 7:652 of the Civil Code lays down four requirements, and all four must be met. The clause must be agreed in writing, it must be of the same length for both parties, it must not exceed the maximum that the law attaches to the duration of the contract, and it must not be a repeat probationary period in a follow-on contract for substantially the same work. Dutch lawyers speak of the iron probationary period for a reason: there is no partial validity. A clause that goes wrong on any of these points is void in its entirety, which means the employee cannot be dismissed on the basis of it at all, and not merely that the excess falls away.

The written requirement is satisfied by the signed employment contract or by a collective labour agreement that applies to the employment relationship. An oral agreement, a sentence in a job advertisement or a reference in an unincorporated staff handbook is not enough. Equality of duration means exactly that: one month for the employee and two for the employer makes the whole clause void, not just the extra month.

The permitted maximum depends on the contract. A contract of six months or less may not contain a probationary period at all. For a contract of more than six months but less than two years, and for a fixed-term contract whose end is not tied to a calendar date, the maximum is one month. For a contract of two years or more and for a contract for an indefinite period, the maximum is two months. A collective labour agreement may extend the one-month period to at most two months, but it cannot create a probationary period where the law forbids one.

Maximum probationary period per contract duration

The fourth requirement is the one most often overlooked. A probationary period may not be agreed again in a follow-on contract with the same employer unless the new contract clearly demands different skills or responsibilities. The same restriction applies where the employer succeeds another employer for whom the employee performed the same work, for example after a transfer of undertaking or a move from an agency contract to direct employment. An employee who has already worked for six months in the role and is then given a permanent contract with a fresh two-month probationary period is therefore usually protected: the clause is void.

How notice is given, and what has to be put in writing

The law does not prescribe a form for the notice itself. A dismissal during the probationary period given orally is valid, and the contract ends the moment the words are spoken. That is precisely why both parties should insist on written confirmation: the effect is immediate and irreversible, and the only thing that can afterwards be reconstructed is what was recorded.

There is one written duty, and it is the one employers most often miss. Article 7:676 provides that the party giving notice must state the reason in writing if the other party asks for it. The employer is therefore not obliged to volunteer a reason, but is obliged to give one on request, and the same applies to an employee who resigns. A refusal, or a reason that shifts between the conversation and the letter, is the single most reliable way to turn a straightforward parting into a dispute.

Handled properly, the sequence is a short conversation followed the same day by a letter or email. The conversation should be direct: state at the outset that the contract is being terminated under the probationary clause, give the reason in factual terms, and avoid vague feedback that cannot be substantiated later. The confirmation should record that the contract is terminated with immediate effect on the basis of the probationary clause, on which date, for what reason, how the final settlement will be calculated and when company property is to be returned. Consistency between what is said and what is written matters more than the wording of either.

Employers should also be aware that the reason given has a second life. The employee needs it for the claim to unemployment benefit, and if a court is later asked to look at the dismissal, the reason recorded at the time is the starting point of the assessment. A reason invented afterwards is worth very little; a reason that changes is worse than none.

What the employee is entitled to

The speed of the procedure does not reduce the employee to nothing. Three entitlements survive a dismissal during the probationary period, and one of them is regularly denied in practice on the basis of an outdated rule.

The first is the reason in writing on request, described above. The second is the final settlement. The employer must pay the salary up to and including the last day of employment, the accrued holiday allowance over the period worked, and the value of holiday entitlement that has been built up but not taken. Any other components that have accrued under the contract or the applicable collective agreement, such as a proportionate part of a fixed year-end payment, are settled in the same statement.

The third is the transition payment (transitievergoeding), and this is where the common misconception sits. Since the entry into force of the Wet arbeidsmarkt in balans, entitlement to the transition payment arises from the first day of the employment contract. There is no longer a qualifying period of two years, which means that an employee dismissed during the probationary period at the employer's initiative is in principle entitled to it as well. The amount will be small, because it is calculated on the salary and the very short duration of the contract, but the entitlement exists and it is not waived by paying out the holiday days. It does not arise where the employee resigns, unless the resignation is the consequence of seriously culpable conduct on the part of the employer. How the payment is calculated is explained in our article on the Dutch transition payment, and the exceptions in our article on special situations and exceptions.

Unemployment benefit after a probationary dismissal

A dismissal at the employer's initiative during the probationary period does not count as culpable unemployment, so it does not in itself bar a claim to unemployment benefit (WW). Entitlement still depends on the ordinary conditions applied by the UWV: the employee must be insured, must have worked in at least twenty-six of the thirty-six weeks preceding unemployment, and must not have caused the unemployment through their own fault. Because a probationary period is by definition short, the weeks requirement is frequently met on the strength of earlier employment rather than the job that has just ended.

Register as a jobseeker with the UWV and submit the claim without delay; applying later than a week after the last working day can cost benefit days. Attach the written statement of the reason for dismissal, because the UWV assesses on that basis whether the unemployment is culpable.

What remains prohibited during the probationary period

The freedom to give notice is a freedom from the procedural requirements of dismissal law. It is not a freedom from the rest of the legal order. Two limits apply with undiminished force, and both are regularly tested in court.

The first is the prohibition of discrimination. Dutch equal treatment legislation, together with the equal treatment provisions of the Civil Code, prohibits distinction on grounds including sex and pregnancy, race and nationality, religion and belief, political opinion, sexual orientation, disability or chronic illness, age, and the difference between fixed-term and permanent or full-time and part-time work. A dismissal during the probationary period that is based on one of those grounds is unlawful, and the fact that the probationary clause is valid does not save it.

The rules of evidence are more favourable to the employee here than employers tend to assume. Where the employee puts forward facts from which discrimination may be presumed, the burden shifts: it is then for the employer to prove that the dismissal was not based on the prohibited ground. A dismissal that follows immediately upon the announcement of a pregnancy or a diagnosis, without any earlier record of dissatisfaction with the work, will readily meet that first threshold, and an employer with nothing on file will struggle to discharge the burden.

The second limit is the misuse of a power. The probationary period exists so that the parties can get to know each other. An employer who engages someone with the settled intention of using them for a short assignment and then invoking the probationary clause is using the power for a purpose other than the one for which it was given, and the employee can seek damages on that basis. This is harder to prove than discrimination, because it turns on the employer's intention at the time of hiring, but correspondence and job advertisements sometimes make that intention visible.

Illness during the probationary period

An employee who is ill during the probationary period may be dismissed. The prohibition on giving notice during illness does not apply in the probationary period, so the mere fact of a sick note does not block a termination.

The reason is a different matter. If the illness itself is the ground for the dismissal, the employer is making a distinction on grounds of disability or chronic illness, and the dismissal is unlawful even though the notice was procedurally correct. Timing tends to decide these cases: where the termination follows within days of the report of a serious illness and the file contains no earlier criticism, courts have little difficulty inferring a connection. Conversely, an employer who had already recorded and discussed inadequate performance before the illness was reported stands on much firmer ground. The distinction to keep in mind is between dismissing someone who happens to be ill and dismissing someone because they are ill.

Challenging a probationary dismissal: the two-month deadline

An employee who considers the dismissal unlawful can ask the subdistrict court either to set the notice aside, so that the employment continues, or to award fair compensation (billijke vergoeding) instead. That choice belongs to the employee, and in practice compensation is asked for more often than reinstatement, because the working relationship is rarely repairable.

The deadline is the point on which most claims fail before they are heard. A request of this kind must be lodged with the court within two months of the day on which the employment contract ended. This is a limitation period of the strict kind: it cannot be interrupted by a letter from a lawyer or by negotiations, and once it has passed the claim is gone. A claim for the transition payment has a deadline of its own: it lapses three months after the day on which the employment contract ended. Anyone who suspects that a probationary dismissal was based on a prohibited ground should therefore take advice within weeks, not months.

The two arguments that succeed most often are not complicated. The first is that the probationary clause was invalid, which turns the immediate termination into an ordinary notice given without the required permission or court order and gives the employee the same remedies. The second is that the clause was valid but the reason was prohibited. Both are decided largely on documents, which is why the written confirmation and the stated reason matter so much on both sides.

Resigning yourself during the probationary period

The probationary period cuts both ways. An employee who concludes that the work, the team or the promises made during the recruitment process do not match reality can terminate the contract with immediate effect, without a notice period and without having to give a reason unless the employer asks for one in writing.

The professional route is a short conversation with the manager followed by a written confirmation stating the date on which the contract ends. An oral resignation is legally effective, which is exactly why it should be confirmed: the employee who later disputes having resigned is in a weak position without a document, and so is the employer.

The financial consequence is the decisive consideration. Resignation on the employee's own initiative is in principle treated by the UWV as culpable unemployment, which means there is no entitlement to unemployment benefit. Only in exceptional circumstances, such as a situation that could not reasonably be expected to continue, is that outcome avoided, and the burden of demonstrating it lies with the employee. Nor is a transition payment due where the employee resigns, unless the resignation was caused by seriously culpable conduct on the employer's part. Leaving during the probationary period is therefore a decision to take with the next job in view rather than in the heat of the moment.

The mistakes that make a probationary dismissal fail

Almost every probationary dismissal that ends up before a court fails for one of a handful of reasons, and none of them is exotic.

The most common is a template contract. A model agreement drafted for permanent contracts carries a two-month clause, which is simply copied into a one-year contract where the maximum is one month. The clause is void, the dismissal is void with it, and the employer is left with an employment relationship it thought it had ended. A second version of the same error occurs at the end of a probationary period: notice given on the day after it expires is an ordinary notice without permission from the UWV or an order of the court, and it can be set aside.

The second is the repeat clause. Employers regularly agree a new probationary period when an agency worker is taken on directly, when a fixed-term contract is renewed, or when an employee is promoted within the organisation. Unless the new role genuinely calls for other skills or responsibilities, the clause is not permitted, because the employer has already had the opportunity to assess this employee in this work.

The third is the attempt to extend. A probationary period cannot be lengthened by agreement, not even with the employee's consent, and it does not pause during illness, holiday or leave. An employee who is ill for three weeks of a one-month probationary period still has a probationary period of one month. Employers who want more time have to think about the length of the contract at the outset rather than about the clause.

The fourth is silence in the file. Because no reasoned dismissal file is required, employers often keep none at all, and then have nothing to show when the employee argues that the real reason was a pregnancy, a disability or a complaint that had just been made. A single dated note of a performance conversation held before the event in question is usually enough to change that picture entirely.

Finally, remember that the end of the contract does not automatically end everything in it. Clauses intended to survive termination, such as confidentiality and, where validly agreed, a non-competition or non-solicitation clause, remain in force after a probationary dismissal. A non-competition clause in a fixed-term contract is only valid if the contract states the compelling business reasons that justify it, and an employer that has terminated the employment through seriously culpable conduct of its own cannot rely on it. For an employee leaving after a few weeks, that clause is worth checking before signing anything with the next employer.

Frequently asked questions on probationary dismissal

Is an oral dismissal during the probationary period valid

Yes. The law does not require the notice to be in writing, so the employment contract ends at the moment the notice is given. The employee does have the right to ask for the reason in writing, and the employer must then provide it. Ask for that confirmation the same day, in an email if necessary: it is the document the UWV will want to see and the starting point for any later assessment of the dismissal.

Can I be dismissed while I am ill during my probationary period

Yes. The prohibition on giving notice during illness does not apply during the probationary period, so an employer may terminate the contract even though you have reported sick. What the employer may not do is dismiss you because of the illness or a disability, which would be a prohibited distinction. The question is always what the real reason was, and a dismissal that follows immediately on a sick report, with nothing on file beforehand, is difficult for an employer to defend.

My six-month contract contains a probationary period, is that allowed

No. A contract of six months or shorter may not contain a probationary period at all, and a clause included anyway is void. Legally it never existed, so you have full protection against dismissal from the first day and the employer cannot terminate the contract by invoking it. The same applies to a clause that is longer than the maximum for the contract in question, or that gives the employer a longer period than the employee.

Am I entitled to a transition payment if I am dismissed in my probationary period

In principle yes, provided the employer took the initiative. Entitlement to the transition payment runs from the first day of the contract, so there is no minimum period of service to complete. Because the payment is calculated on salary and length of service, the amount after a few weeks is modest, but it is a separate entitlement from your salary and holiday pay and it should appear in the final settlement. If you resign yourself, no transition payment is due unless your resignation was the result of seriously culpable conduct by the employer.

How long do I have to challenge a probationary dismissal

Two months from the day the employment contract ended, for a request to set the notice aside or to award fair compensation. A claim for the transition payment must be brought within three months. These periods cannot be extended or interrupted, so if you believe the clause was invalid or the reason prohibited, get the file assessed quickly rather than waiting for a reply from the employer.

How Law and More can help

Law and More advises employers and employees on probationary periods and the dismissals that follow from them: checking whether a clause is valid before it is relied on, drafting the confirmation and the statement of reasons, assessing whether a dismissal was based on a prohibited ground, and conducting proceedings before the subdistrict court within the short deadlines that apply. The wider framework is set out in our overview of employment contracts in the Netherlands and in our Dutch employment law guides. If a probationary period is about to end or a dismissal has just been given, we are happy to look at the file with you.