Netherlands Update: Ruling of the week: “Probationary clause in subsequent employment contract”?

The regular reader is aware that the rules of the game with regard to the probationary clause are strict. However, a striking possibility in the law is that a new probationary period may be agreed in a new employment contract between the same parties if ‘the agreement clearly requires different skills or responsibilities from the employee than the previous employment contract’.

An employer, presumably a garage, thought he could make good use of this possibility. The employer hired an Apprentice Mechanic on the basis of an apprenticeship contract in the context of a training course. The parties extend the apprenticeship contract once more. However, the employee stops his training, so that the basis for the apprenticeship contract expires. The employer then offers the employee an employment contract, including one month of probation, as a Mechanic. His salary goes up considerably, from EUR 1,200 to EUR 1,800 per month.

Within that month, the parties will complain about damage to a company car and the employer terminates the employment contract using the probationary clause. The employee relies on the nullity of the clause.

The subdistrict court ruled in favor of the employee, because he could show that the “skills and responsibilities” have not clearly changed in the new position. Even as an Apprentice Mechanic, he was given a lot of responsibility and no one always looked over his shoulder. He also went out on his own as an Apprentice Mechanic. The acquired responsibility therefore only arises from the increased trust in the employee, not because the position has changed in substance, according to the judge.

The court annuls the probationary dismissal and the employer must pay 1.5 months in compensation. He got away well because the employee had found a new job and had not properly substantiated the fair compensation.

The lesson? A probationary clause in a subsequent employment contract between the same parties is only permitted in (very) exceptional situations, because of its far-reaching consequences if the employer can invoke the clause.

Read the full ruling here

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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