8 June 2021

5 pitfalls when drawing up an employment contract (part 1)

By Seliz Demirci

In this series I discuss five pitfalls for employers when drawing up an employment contract.

The probationary period and the notice period are discussed in this blog. In the second part, I discuss the early termination clause, the information obligation, and the non-competition clause.

1 – Probationary period

The biggest pitfall is probation. If you’re hiring a new employee, you may want to see what kind of person they are. A probationary period is intended for this. The employment contract therefore usually mentions a probationary period.

You may think the longer the probationary period, the better. Nothing is less true. The rules for probation are strict:

  • No probationary period may be included in an employment contract for a maximum of 6 months.
  • A probationary period of one month may be stated in an employment contract longer than 6 months;
  • A probationary period of two months may be included in an employment contract for two years or longer.

It often happens that a longer trial period is included. I do not recommend this. A probationary period that is too long is not valid. Judges do not change this into a valid probationary period, even if the cancellation would fall within a valid trial period. The entire probationary appointment is then invalid. The result: a tedious procedure and the employee remains employed.

Therefore, check your probationary period carefully.

2 – Notice period

The second pitfall is the notice period. The notice period for your employee is one month. The notice period depends on the final term of the employment contract. You start with one month and one month is added every five years.

Deviation is allowed if you do this according to the rules. Your employee may not have a notice period longer than six months. Your notice period as an employer is at least double.

Sometimes an employment contract states: “Employee has a notice period of two months”. That sounds attractive. The employee must continue to work for two months after notice and you have more time to look for a replacement. But this deviation is not valid. The employee may then choose. He or she leaves with one month’s notice period, or chooses to adhere to a four-month notice period for you as an employer. That is then quite disappointing.

Therefore, think carefully about which notice period you want to agree on, and how you write this down.

Do you have a question about drawing up an employment contract? Please do not hesitate to contact me.

 

Seliz Demirci

Seliz Demirci

Lawyer

Within the Employment & Pension law section, Seliz advises national and international employers and employees on various employment law issues.

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