27 May 2024

A second trial period: is that possible?

By Amber Willemsen

Many employers are in the understanding that a trial period can only be validly agreed upon in the first employment contract with the employee. However, this is not always the case.

Second trial period

When a new employment contract is concluded with an existing employee because he or she will be taking up a different position that clearly requires different skills or responsibilities from the employee, a trial period may be re-negotiated for that new contract under certain circumstances. This article explains in more detail the options for a second trial period based on a recent ruling by the Rotterdam District Court.

Conditions

A trial period can be agreed upon in the employment contract to provide an opportunity for both the employer and the employee to ‘try out’ the employment. During this period, the parties can determine if they are a ‘fit’ both professionally and on a personal level. If (one of) the parties does not find the employment a good fit, they can part ways relatively easily and without observing any notice period.

For a trial period to be valid, it must be agreed upon in writing in the employment contract which has a duration of at least six months. Usually it is one or two months, depending on the length of the employment contract (one month in case of a temporary contract with a duration of minimal six months but less than two years, two months are allowed in case of a temporary contract for two years or more of in case of an indefinite term contract).

Is the employee employed in a similar position with the same employer or with a successor employer? In that case, the parties are deemed to be already familiar with each other’s knowledge and skills and a second trial period cannot be agreed upon. However, a trial period clause in a successive employment contract where the position is not comparable, may be valid.

New position

For a valid trial period clause in a successive employment contract, the new position should clearly require different skills or responsibilities from the employee. In a recent ruling by the Rotterdam District Court, the court addressed the question of whether there were such other skills or responsibilities in a specific case. That case involved an employee at a healthcare institution, who first performed work in a basic vocational learning pathway as a student and then had a subsequent employment contract to perform work as a teaching assistant. The employer used the trial period clause included in the previous contract.

The employee took the position that a trial period could not be agreed upon again in his second employment contract with the same employer. However, the court ruled that the trial period and thus the trial period dismissal was legally valid since the position of a student required substantially different skills from the employee than the position of a teaching assistant. In this regard, the court considered it decisive that as a student the employee had no final responsibility, but as a teaching assistant he did. The employee therefore came away empty-handed.

Damages

A successive employment contract may therefore include another trial period if the new position the employee will occupy requires substantially different responsibilities or skills. Are you planning to promote your employee because of his good track record, but have doubts about whether he will perform the new position as well as his current position? Then a trial period clause may be the answer. This is subject to the provison that the new position requires substantially different responsibilities or skills.

In addition, keep in mind that if the trial period clause is used, the employee’s employment contract terminates permanently. Thus, unless otherwise agreed, the employee will not return to his former position. As a good employer, you are required to consider the interests of the employee in that case. An attorney can assist you in your decision on whether to include a trial period clause and how to use it.

Court of Rotterdam 16 August 2023, ECLI (abridged):8008

Duration of a standard trial period

As briefly mentioned above, the trial period has a maximum duration of two months. In the case of temporary employment contracts that have a duration of between six months and two years or where the end date is not set to a calendar date, a maximum trial period of one month applies. In the case of temporary employment contracts of more than two years or for permanent contracts, a trial period of up to two months applies.

Derogation on the basis of a collective bargaining agreement

A collective bargaining agreement may provide the option to derogate from the legal term of the trial period. For example, the Collective Bargaining Agreement for the Metal and Electrical Industry (cao Metaal en Elektro) has a standard two-month trial period for all employment contracts longer than six months. Therefore, when entering into an employment contract with a trial period clause, check whether a collective bargaining agreement applies.

Strict trial period

Both cases involve a fixed term: a strict trial period. The trial period cannot be extended even if the employee has been sick for part or even all of the trial period. Also, notice of termination can only be given until the very last day of the trial period. It is not possible to extend the notice of a dismissal during the trial period over the weekend because the employee left work early on the last day of the trial period. Therefore, when giving a trial period dismissal, provide a proper and preferably written record and ensure that the deadline is met.

More information

Do you have a legal question or would you like more information about the trial period? Please do not hesitate to contact us.

Amber Willemsen

Amber Willemsen

Lawyer

Amber Willemsen is a lawyer within the Employment law section.

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