Dismissal during the probationary period in the Netherlands

During a valid probationary period (proeftijd) the employer and the employee can each end the employment contract with immediate effect, without a notice period, without UWV permission and without a court order (Article 7:676 of the Dutch Civil Code, BW). The main exception: if the probationary clause does not meet the strict requirements of Article 7:652 BW, it is void, and the employee has full dismissal protection from the first day.

This article explains when the clause is valid, how notice is given, what the employee is still entitled to, where the limits lie and how to challenge a probationary dismissal within the two-month deadline.

What does dismissal during the probationary period mean?

It means the contract ends on the day notice is given. No notice period applies, no reasoned dismissal file is needed, and the employer does not have to ask the UWV or the subdistrict court (kantonrechter) for permission.

Under Article 7:670a(2)(b) BW the statutory prohibitions on giving notice during illness, pregnancy and works council membership do not apply to a dismissal during the probationary period. The ban on dismissing an employee because he or she takes statutory leave, such as parental leave, does still apply (Article 7:670(7) BW), as do the equal treatment rules.

Notice can be given at any time within the agreed period, even on the first working day. Notice given one day after the period has expired is an ordinary notice without permission and can be annulled. The period runs from the start date of the contract, not from the date of signature.

When is a probationary clause valid?

Article 7:652 BW sets four requirements, and all must be met. If any one is not met, the whole clause is void (Article 7:652(8) BW), not just the excess.

• The clause is agreed in writing, in the contract or in an applicable collective labour agreement (cao).
• It is the same length for both parties.
• It does not exceed the statutory maximum for the type of contract.
• It is not a repeat probationary period in a follow-on contract for the same work.

What is the maximum length?

The maximum depends on the contract. Under Article 7:652(7) BW a cao can depart from the one-month maximums in the table to the employee’s disadvantage; an individual contract cannot.

Can a new contract contain a new probationary period?

Only if the new contract clearly requires different skills or responsibilities (Article 7:652(6)(b) BW). The same restriction applies to a new employer that must be regarded as the successor of the previous one for the work concerned, for example when an agency worker is taken on directly.

How is notice given?

The law prescribes no form: an oral notice is valid and ends the contract immediately. Under Article 7:676(2) BW the employer must state the reason in writing if the employee asks for it.

In practice, a short conversation should be followed the same day by an e-mail or letter confirming the end date, the reason, the final settlement and the return of company property. The reason matters twice: the UWV uses it to assess the claim for unemployment benefit, and a court uses it as the starting point if the dismissal is challenged.

What is the employee still entitled to?

The employee keeps the right to a written reason on request, a final settlement and, if the employer took the initiative, a transition payment (transitievergoeding).

The final settlement covers salary up to the last day, accrued holiday allowance and untaken holiday days. Under Article 7:673 BW the transition payment is due whenever the employer gives notice, from the first day of employment; after a few weeks it is small, but it must be paid. It is not due if the employee resigns, unless that was caused by seriously culpable conduct of the employer. See our article on the Dutch transition payment.

Can the employee claim unemployment benefit?

A dismissal at the employer’s initiative does not in itself bar unemployment benefit (WW). Under Article 17 of the Unemployment Insurance Act (WW) the employee must have worked at least 26 of the 36 weeks before unemployment, often on the strength of earlier jobs. Register with the UWV promptly and attach the written reason.

What remains prohibited?

The probationary period frees the parties from dismissal procedures, not from the rest of the law. A dismissal based on a prohibited ground, such as pregnancy, disability or chronic illness, race, religion or age, is unlawful even if the clause is valid.

If the employee puts forward facts from which discrimination can be presumed, the employer must prove it was not the reason. A dismissal immediately after a pregnancy announcement or a diagnosis, with no earlier recorded criticism, readily meets that threshold. An employee who is ill may be dismissed, but not because of the illness.

How do you challenge a probationary dismissal?

The employee can ask the subdistrict court to annul the notice or to award fair compensation (billijke vergoeding) instead. Under Article 7:686a(4) BW the request must be filed within two months after the contract ended; a claim for the transition payment must be filed within three months.

These are expiry periods: a letter or negotiations do not stop them. The two arguments that succeed most often are that the clause was invalid, or that the clause was valid but the reason was prohibited.

What does a probation dismissal cost?

The transition payment is due. Since 2020 the entitlement to a transitievergoeding accrues from the first day of employment, so it also arises where the employer terminates during the probation period. It amounts to one third of a gross monthly salary for each full year of service, calculated pro rata for the remaining part, which after a few weeks is a small sum but a sum that must be paid. It is not due where the employee resigns, and it is not due where the termination results from seriously culpable conduct by the employee.

The rest of the final settlement follows the ordinary rules: salary up to and including the last day, payment of accrued and untaken holiday hours, the pro rata holiday allowance, and any other accrued components. If the employee asks for a written statement of employment, a getuigschrift, it must be provided, and it may only contain an assessment of the employee performance if the employee asks for that as well.

What if the employee is ill when the contract ends?

A termination during probation is lawful while the employee is on sick leave, but it does not make the sickness disappear from your file. The obligation to continue paying wages ends with the employment contract. From that moment the employee falls back on sickness benefit from the UWV as a so-called vangnetter, an employee without an employer at the time of illness.

That benefit is not necessarily neutral for the employer. Sickness benefit paid to former employees can be attributed to the employer through the differentiated contribution under the Wet financiering sociale verzekeringen, so a short employment that ends in a period of illness can produce a cost for years afterwards. Employers who bear their own risk under the Ziektewet carry the benefit directly. Before terminating during a period of sickness, ask your payroll adviser what the attribution will be.

Note also that terminating while the employee is ill invites the argument that illness was the reason. Where the suitability concerns predate the sick leave and are documented, that argument fails. Where they do not, it is difficult to answer.

What are the alternatives to a probation dismissal?

Dismissal is not always the right instrument, and two alternatives are worth considering before you use it.

The first is simply letting a short fixed-term contract expire. A fixed-term contract ends by operation of law on its end date without any dismissal. Where the contract has run for six months or more, the employer must inform the employee in writing at least one month before the end date whether it will be continued and, if so, on what terms. Missing that notification does not extend the contract, but it obliges the employer to pay compensation equal to one month of salary, pro rata for a shorter delay. Diarise the notification date at the start of the contract rather than the end.

The second is termination by mutual consent in a vaststellingsovereenkomst (settlement agreement). This is worth considering where the relationship is not working but the probation clause is doubtful, or where the employee has raised a complaint and a clean break is preferable to a dispute about the reason. Remember that the employee has a statutory period of fourteen days in which to dissolve the agreement without giving reasons, and that this period must be mentioned in the agreement itself; if it is not, it becomes three weeks.

What if the employee holds a residence permit?

Where the employee holds a residence permit tied to your organisation as sponsor, a probation dismissal has consequences outside employment law. As a recognised sponsor you are under a duty to notify the IND of relevant changes, including the end of the employment, within the period the immigration rules prescribe, and failure to do so can affect your recognised sponsor status. The employee normally receives a search period in which to find a new sponsor before the permit is withdrawn.

Two practical points follow. Tell the employee what the position is rather than leaving them to discover it, because an employee who first learns of the immigration consequences from the IND is far more likely to contest the dismissal. And check whether the salary criterion and the notification obligations were met throughout the employment, since a probation dismissal frequently prompts a review of the file by both sides.

What are you entitled to when the contract ends?

You are entitled to a transition payment (transitievergoeding) under Article 7:673 BW, because the employer terminated the contract. It accrues from the first day of employment: one third of a monthly salary per year of service, pro rata, so after a few weeks it is a small but real amount.

The transition payment is not due if you resign yourself or if the termination results from seriously culpable conduct on your part. You are also entitled to a final settlement: salary up to the last day, untaken holiday hours, and the pro rata holiday allowance.

On request, your employer must give you a reference (getuigschrift) under Article 7:656 BW, stating the nature of the work, working hours and the period of employment. An assessment of your performance is included only if you ask for it. A non-compete clause in a fixed-term contract is valid only with a written statement of compelling business interests (Article 7:653(2) BW), so check whether it binds you at all.

What should you do in the first days?

Do not sign a settlement agreement (vaststellingsovereenkomst) on the spot, and do not resign. If you do sign a settlement agreement, Article 7:670b BW gives you fourteen days to dissolve it in writing without giving reasons (three weeks if the agreement does not mention this right).

Record the date and time of the dismissal, who was present and what was said, and what you told the employer in the days before about health, pregnancy, leave or a complaint. Keep the contract, the correspondence and any feedback, and take advice quickly, because the two months run from the end of the contract.

What should you check as an employee?

Most challenges turn on the documents and the dates.

• Is the probationary clause in writing, equal for both parties and within the maximum for your contract?
• Did you work for this employer, or through an agency in the same role, before this contract?
• Was notice given before the period expired?
• Have you asked for the reason in writing?
• Does the final settlement include holiday pay and a transition payment?
• Is the two-month deadline in your diary?

What should you check as an employer?

Most failed probationary dismissals stem from template contracts and an empty file.

• Does the clause match the contract type? A two-month clause in a one-year contract is void.
• Is this a follow-on contract or a former agency worker? Then a new clause is usually not allowed.
• Is the notice given within the period, which cannot be extended, not even for illness or holiday?
• Have you recorded performance concerns before the dismissal?
• Can you give a consistent written reason that does not touch a prohibited ground?

What can we do for you with dismissal during the probationary period?

Our employment lawyers advise employers and employees, in English and Dutch. Read more in our Dutch employment law guides.

• We check whether the probationary clause in your contract is valid.
• We draft the dismissal confirmation and the written statement of reasons.
• We calculate the final settlement and the transition payment.
• We assess whether the dismissal was based on a prohibited ground.
• We file or defend the request at the subdistrict court within the two-month deadline.

Summary

• During a valid probationary period either party can end the contract immediately (Article 7:676 BW).
• The clause must be in writing, equal for both parties and within the statutory maximum; otherwise it is void (Article 7:652 BW).
• The employer must give the reason in writing on request; the transition payment is due if the employer gave notice.
• Discriminatory dismissal remains unlawful; challenge it within two months (Article 7:686a(4) BW).

Frequently asked questions