Employer makes mistake with probationary period under Work and Security Act

The first decision under the Work and Security Act (‘WWZ’) regarding the probationary period has been published. The case can be summarized as follows:

As of 1 March 2015, an employer and employee concluded an employment agreement for a definite period of six months with a probationary period of one month. During the probationary period, the employer terminated the employment agreement for business economical reasons. The employee however argued that the probationary period was null and void.

The cantonal court ruled in summary proceedings that as of 1 January 2015 no probationary period can be agreed upon in employment agreements with a fixed term of six months or less. The probationary period therefore is null and void and consequently, the employer needed to have a dismissal permit of the Employee Insurance Agency (‘UWV’) to validly terminate the employment agreement. Since the permission of the UWV is also lacking, the cantonal court ruled that the dismissal was not in accordance with Dutch law. Therefore, the employee is entitled to amongst others payment of wages. The employee’s request to re-employment was granted as well. The employer’s argument that there is no work cannot be invoked against this employee according to the judge.

According to HDK Advocaten it is impractical for employers to conclude employment agreements of exactly six months. On the one hand a probationary period is null and void and on the other hand the employer has the obligation to notify the employee in writing whether the employment agreement will be extended after the term (this applies to contracts of six months or longer).