Dismissing an employee during the probation period in the Netherlands

Dismissing an employee during the probation period in the Netherlands requires no permission from the UWV, no court order and no notice period, but it stands or falls with two things: a probation clause that satisfies article 7:652 of the Burgerlijk Wetboek, and a reason that has nothing to do with a protected characteristic. If the clause is void, the termination is unlawful and the employee can claim annulment or compensation. This article looks at the position from the side of the employer; the employee side is set out in our article on being dismissed during your probation period.

Getting the probation clause right

Everything else depends on this. A proeftijd (probation period) exists only if it has been validly agreed, and Dutch law leaves no room to repair a defective clause afterwards. Article 7:652 of the Burgerlijk Wetboek imposes four requirements, and failing any of them makes the clause void in its entirety rather than reducing it to the lawful maximum.

The clause must be agreed in writing, either in the employment contract or in an applicable collective labour agreement, and it must be in place when the employment begins. It must be identical in length for employer and employee. It must respect the statutory maximum for the type of contract. And it may not appear in a follow-up contract with the same employer, or with a successor employer, unless the new position demands clearly different skills or responsibilities than the previous one.

Maximum probation periods by contract type

A collective agreement may extend the one-month maximum to two months, but only where the collective agreement actually says so and actually applies to your organisation. Nothing else can. A clause that is a single day too long, or that gives the employer a longer period than the employee, is void, and with it goes the whole special regime: the termination then has to satisfy the ordinary rules, which it will not.

The successive-contract rule catches more organisations than any other. A fresh probation clause in a second contract for the same work is void. So is a clause in the first contract of a company that takes over an undertaking, in relation to staff who transferred with it, and a clause agreed when an agency worker moves onto your own payroll doing the same job. The exception for a demonstrably different position is read strictly; a promotion within the same discipline will rarely qualify.

When and how you may terminate

With a valid clause the termination itself is simple. It takes effect immediately, it can be given on any day within the probation period including the first and the last, it needs no notice period, and it requires neither UWV permission nor an order from the subdistrict court. It can also be given before the employee has actually started work, provided the contract has been concluded and the probation period has begun to run.

The statutory prohibitions on termination do not stand in the way. Outside probation an employer may not terminate during the first two years of illness, during pregnancy and maternity leave, or because an employee sits on the works council. The Civil Code makes an express exception for termination in the probation period, so a dismissal during sick leave is lawful in itself. That exception says nothing about the reason, and the reason is where the exposure lies.

Timing is unforgiving. The probation period ends on the date fixed in the contract and cannot be extended, not by illness, not by holiday, and not by agreement with the employee. A termination communicated one day late is a termination outside probation, which means it is invalid and the contract continues. Where a decision has been taken, act on it the same day.

A termination given orally is legally valid, but it is a poor idea. The employer bears the burden of proving that the termination was communicated within the probation period, and an oral notice that the employee later disputes is very hard to prove. Confirm it in writing on the same day, state the date on which the employment ends, and use a method that produces evidence of receipt.

Do not reach for summary dismissal

Where misconduct comes to light during probation, employers sometimes give an ontslag op staande voet (summary dismissal) instead. There is rarely any reason to do so. Summary dismissal requires an urgent cause, immediate notice and an immediate statement of the reason, and if the court finds any of those wanting the employer faces a claim for wrongful termination. A probation termination achieves the same result without any of those requirements. Use the simpler instrument.

The reason: what you may and may not rely on

The probation period exists so that the employer can assess whether the employee is suited to the work: performance, skills, reliability, the way the person operates in the team. A termination founded on that assessment is exactly what the instrument is for, and it does not have to be a serious failing. A reasonable doubt about suitability is enough.

What the probation period does not do is suspend equal treatment law. A dismissal motivated by sex, including pregnancy, childbirth and maternity; race or ethnic origin; nationality; religion or belief; political conviction; sexual orientation; civil status; disability or chronic illness; age; or the number of working hours or the fixed-term nature of the contract, is unlawful whatever the contract says. The distinction that matters in practice is between dismissing an employee who happens to be ill and dismissing an employee because of illness or disability. The first is permitted; the second is discrimination.

Victimisation is a separate trap. A termination that follows a complaint about discrimination or harassment, a report of unsafe working conditions, a whistleblowing report, or an employee insisting on a statutory entitlement, is unlawful on that ground alone, independently of whether the original complaint was well founded.

Beyond these prohibitions sits the standard of good employer conduct in article 7:611 of the Burgerlijk Wetboek. An employer that gave no feedback at all and then terminated on the last day for underperformance, that dismissed for facts it already knew when it made the offer, or that used the probation period to absorb a fall in workload rather than to assess the person, is vulnerable even where no protected ground is involved. The remedy in such cases is usually compensation rather than annulment, but it is a real cost.

You must give the reasons in writing if asked

Article 7:676 of the Burgerlijk Wetboek obliges the party that terminates to state the reasons in writing at the request of the other party. In practice that means the employer. The obligation is unqualified: there is no discretion to refuse, and a refusal, or an answer that is vague or that shifts over time, is treated by the courts as an indication that the real reason is one that could not be stated.

Prepare the answer before you terminate rather than after. A short, factual and accurate statement of the ground, consistent with what was actually discussed with the employee, closes the matter in most cases. An answer drafted weeks later, once a lawyer is involved, invariably reads as reconstruction. Where feedback was given during the probation period, refer to it and to its dates.

What a probation dismissal costs

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.

Two contractual points are worth checking before you rely on them. A non-competition clause in a fixed-term contract is valid only if it is accompanied by a written statement of compelling business interests that justify it in the individual case, and standard wording will not do. A study cost repayment clause is enforceable only within the limits of the statutory rules on training costs, and training that the employer is obliged to provide may not be charged to the employee at all.

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 is 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; it occasionally changes the commercial calculation, and it is not a question a lawyer can answer for you.

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.

Alternatives to a probation dismissal

Dismissal is not always the right instrument, and three 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.

The third is to use the remainder of the probation period properly. Where the concern is capability rather than conduct, a documented conversation with concrete expectations and a short review date often resolves the matter, and if it does not, it produces exactly the file you will need. It also puts you in a defensible position on good employer conduct, which the alternative of silence followed by a last-day dismissal does not.

Managing the probation period so that dismissal is the exception

The probation period is an assessment instrument, and organisations that treat it as one dismiss far fewer people and lose far fewer cases. Three habits do most of the work.

Set expectations in writing at the start. A short note of what the person is expected to be able to do independently by the end of the probation period, sent in the first week, costs nothing and converts a subjective impression into a measurable one. It also protects the employee, which is the point of the exercise.

Hold at least one interim conversation, halfway through, and record it in two or three sentences by email to the employee. That email is the single most valuable document in any later dispute, because it is contemporaneous, it is not disputed, and it establishes that the concerns existed before whatever the employee later says triggered the dismissal. It also gives the employee a genuine chance to correct course, which is what good employer conduct requires.

Decide in time. Line managers routinely leave the decision until the final days, which produces rushed terminations, missed deadlines and dismissals communicated after the period has expired. Set an internal deadline a week before the end date, and make the decision then.

Finally, train the people who actually give the message. Most of the damage in these cases is done in the conversation itself, by a manager who improvises a reason, who says something about pregnancy, health or age in an attempt to be kind, or who promises something the organisation will not deliver. A one-page script and a clear rule that the written confirmation comes from HR prevents almost all of it.

Where employers get this wrong

The disputes that reach a court almost always turn on one of a small number of recurring errors, and all of them are avoidable at the drafting stage.

Employees on 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.

If the employee challenges the dismissal

The route is a petition to the kantonrechter (subdistrict court) under article 7:681 of the Burgerlijk Wetboek. The court can annul the termination, in which case the employment contract revives and wages are owed for the intervening period, or it can award a fair compensation, a billijke vergoeding, instead. In a relationship of a few weeks, compensation is the more common outcome, but annulment of a termination that took place months earlier is an expensive result.

The employee is bound by short forfeiture periods: two months from the end of the employment for a request under article 7:681, and three months for a claim to the transition payment. These are not limitation periods and nothing suspends them, so an employer that is approached after those periods have expired is in a strong position on that point alone. Do not, however, treat silence in the first weeks as the end of the matter.

Two evidential points decide most cases. The first is the validity of the probation clause, which the employer must be able to demonstrate from the signed contract and, where relevant, the collective agreement. The second is the reason. In discrimination cases the burden of proof is shared: once the employee puts forward facts giving rise to a presumption of discrimination, typically the timing of the dismissal in relation to a disclosure, it falls to the employer to prove that no discrimination played a role. An employer with contemporaneous notes of performance concerns dating from before the disclosure meets that burden; an employer with nothing on file usually does not.

The employee may also complain to the College voor de Rechten van de Mens, the Netherlands Institute for Human Rights, which issues a reasoned opinion free of charge. The opinion is not binding, but it is public and it is regularly relied on in subsequent proceedings, so a request from the Institute deserves a considered response rather than a formal one.

Before you dismiss: a short checklist

Verify the clause first: is it in writing, is it equal for both parties, does it fit the contract term, and is this the first contract for this work. Then check the date: does the termination fall inside the period, with a margin of at least a few days.

Then check the reason. Write down, in one or two sentences, the suitability ground you are relying on, and check whether anything happened in the preceding weeks that an outsider could connect to the decision: a pregnancy announcement, a period of sickness, a request for leave, a complaint. If there is such a connection, the file must show that the concerns predate it.

Then communicate the decision in person, on the same day confirm it in writing with the end date, prepare the written statement of reasons in case it is requested, and calculate the transition payment and the final settlement so that they are paid on time rather than after a reminder.

Law and More advises employers on probation clauses, on the timing and wording of a probation dismissal, and on the defence of claims brought after one. We review contract templates and collective agreement provisions before problems arise, and we act in proceedings before the subdistrict court where a dismissal is challenged. If you are considering a termination during a probation period, or you have received a letter contesting one, contact us before the next step. Our wider guidance on termination is set out in our article on how to handle employee dismissal legally.