Being dismissed during your probationary period can feel as though you have little say in the matter. Yet there are more options available than you might think, even if your employer places a settlement agreement on the table. Knowing your rights — and understanding what is actually open to negotiation — can make a significant difference.
How dismissal during probation works
The probationary period is intended as a mutual getting-to-know-you phase. During that period, both you and your employer may terminate the employment contract with immediate effect, without any notice period or permission from the UWV (Employee Insurance Agency) or the subdistrict court being required. The rules are set out in Article 7:676 of the Dutch Civil Code. In principle, your employer does not need to give a reason for the dismissal, although a reason must be provided if you explicitly request one.
It is important to note that a probationary period is only valid if it has been agreed in writing, applies for an equal duration to both you and your employer, and complies with the statutory maximum terms. For contracts shorter than six months, a probationary clause is not permitted at all. For fixed-term contracts longer than six months but shorter than two years, the maximum is one month, and for contracts of two years or more, or permanent contracts, the maximum is two months. If the probationary period has been set longer than is legally permitted, or was not agreed in writing, the clause is void and there is, legally speaking, no valid probationary period at all.
When a dismissal during probation is not legally valid
Although the probationary period affords employers considerable freedom, there are clear limits. Dismissal for a discriminatory reason is prohibited even during probation. This includes dismissal on grounds of pregnancy, chronic illness, religion, or any other protected characteristic. If your dismissal during probation is motivated by such a reason, you can challenge it before the courts. There is, however, a strict time limit: your application must be submitted to the subdistrict court within two months of the dismissal.
Do not forget to check whether the probationary period may already have been used up. If you previously held a contract with the same employer for comparable work, or joined via a recruitment agency for the same role, it may not be permissible to agree a new probationary period in the subsequent contract. In that case, the dismissal could be legally challengeable.
The settlement agreement in the context of dismissal during a probationary period
Employers sometimes choose not to implement a probationary dismissal unilaterally, but instead offer you a settlement agreement (VSO). This can be a deliberate choice: the employer wishes to arrange the dismissal by mutual agreement and to avoid any dispute about the validity of the probationary period. In such a case, a settlement agreement at the point of probationary dismissal actually gives you, as the employee, an opportunity to negotiate the terms.
Bear in mind that with a Settlement agreement You do not automatically have a right to a statutory redundancy payment. That right arises by operation of law only in the case of a dismissal. However, that does not mean you cannot negotiate anything: within a settlement agreement you can agree on a voluntary severance payment, which may even exceed the statutory redundancy payment. Particularly if the employer has doubts about the validity of the probationary period, they may well be willing to agree to a more generous arrangement.
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Plan a conversationTransitional payment and unemployment benefit following dismissal during a probationary period
If you are dismissed unilaterally by your employer during the probationary period, you are, in principle, entitled to a transition payment, even where the employment has been brief. The amount will naturally be modest, as the payment is calculated on a pro-rata basis according to the number of days worked. Nevertheless, the entitlement exists in principle: even in the case of probationary dismissal at the employer’s initiative, a claim arises.
Different rules apply to unemployment benefit (WW). To be eligible for unemployment benefit, the initiative to end the employment must demonstrably lie with the employer, and you must not have played a culpable role in your own dismissal. In the case of a settlement agreement, it is essential that the document contains a neutral reason for dismissal and that the employer’s initiative is explicitly recorded. If you resign of your own accord during the probationary period, you are not entitled to unemployment benefit.
What you can do in practice following probationary dismissal
The steps below will help you maintain a clear overview and put yourself in the strongest possible position:
- Check whether the probationary period is valid. Was it agreed in writing, does it apply equally to both parties, and is it no longer than the statutory maximum?
- Please provide the reason for your dismissal in writing. You have the right to know the reason for your dismissal, and that reason may be crucial for your next steps.
- Assess whether discrimination or abuse of rights is involved. Is a protected characteristic at play? If so, the dismissal may be challengeable before the county court.
- Check if the probationary period was already used in a previous engagement. Where there is a succession of employers or a previous contract for the same role, the probationary period may be void.
- Do not delay if you wish to bring proceedings. The time limit for challenging a discriminatory probationary dismissal is only two months.
- Negotiate over a settlement agreement if one is on the table. Seek a severance package, a neutral reason for dismissal, and an accurate termination date to protect your eligibility for unemployment benefits.
- Always have the settlement agreement reviewed before signing. Missing or incorrect provisions can have immediate consequences for your income after dismissal.
Why choose an Employment Lawyer in Eindhoven
Probationary dismissals can often feel unexpected and unfair. At Employment Lawyer Eindhoven, we know how to keep a cool head in such situations and achieve the best possible outcome. Whether you want to know if your probationary period was even valid in the first place, or you would like a settlement agreement reviewed and improved, we are here for you. Practical, personal, and straight to the point. Contact us without obligation for an initial conversation. We are happy to explore your options with you, including if you work in the Eindhoven or Brabant region.
Frequently asked questions
Are you entitled to a transition payment if you are dismissed during your probationary period?
Yes - if you are dismissed at your employer's initiative during the probationary period, you are in principle entitled to a transition payment. The amount will be small because it is calculated on a pro-rata basis according to the number of days worked, but the entitlement does exist. With a settlement agreement there is no automatic right to the statutory transition payment; you must negotiate for it yourself.
Yes, you can challenge a dismissal during your probationary period.
That depends on the circumstances. If the probationary period was not agreed in writing, is too long, or does not apply equally to both parties, then the clause is void and the dismissal may not be legally valid. Dismissal for a discriminatory reason — such as pregnancy, chronic illness, or religion — is also prohibited, even during probation. You must act quickly, however: an application to the subdistrict court must be submitted within two months of the dismissal.
An employer might offer a settlement agreement in a probationary dismissal situation rather than simply terminating the contract for several reasons: To avoid potential legal claims: Even though the employee is on probation and has fewer statutory rights, they could still raise grievances or make claims, such as discrimination or unfair dismissal (though the threshold for unfair dismissal is higher for those with less than two years' service). A settlement agreement typically includes a waiver of all such claims, providing the employer with greater certainty and reducing the risk of costly litigation down the line. To maintain a professional and amicable departure: Even during probation, a poorly handled dismissal can lead to negative reviews or reputational damage, especially if the employee is connected within the industry. Offering a settlement can facilitate a more professional and less contentious exit. To protect confidential information: The settlement agreement can include clauses preventing the employee from disclosing any confidential company information or making disparaging remarks about the employer. To speed up the process: While termination might seem straightforward, probationary employees can sometimes extend the process by lodging grievances or raising issues. A settlement agreement, once signed, brings finality and allows the employer to move on more quickly. To avoid a formal grievance or disciplinary process: If the employer is concerned about the employee challenging the dismissal through internal processes, a settlement agreement can bypass these steps. Goodwill and potential future relationships: In some cases, the employer may wish to maintain a degree of goodwill, perhaps if the dismissal wasn't due to performance but some other unforeseen circumstance, or if the employee has skills that might be valuable in the future to a partner company. Reducing administrative burden: While it might seem counterintuitive, sometimes navigating the formal dismissal process, especially if it involves multiple stages, can be more administratively burdensome than negotiating a settlement. To get the employee to sign a non-compete or non-solicitation clause: While less common during probation, a settlement agreement could offer a way to secure such an agreement if the employer sees value in it, though this would typically be part of a broader package. Essentially, a settlement agreement offers a structured, legally binding way to resolve the employment relationship and mitigate potential risks and future complications for the employer, even in a probationary period.
An employer will sometimes opt for a settlement agreement because they wish to avoid any dispute about the validity of the probationary period, or because they prefer to arrange the dismissal by mutual agreement. For you as the employee, this actually creates room to negotiate: you can request a severance payment, a neutral reason for dismissal, and a correct end date that protects your entitlement to unemployment benefit.
Are you entitled to unemployment benefit after a probationary dismissal accompanied by a settlement agreement?
In principle, yes — provided the settlement agreement meets the UWV's requirements. The agreement must contain a neutral reason for dismissal, the initiative for the dismissal must lie with the employer, and the correct notional notice period must be observed. If you resign of your own accord, you are not entitled to unemployment benefit. Always have the settlement agreement reviewed to avoid unpleasant surprises afterwards.
May my employer dismiss me during probation while I am off sick?
Yes, the prohibition on dismissal during sickness does not apply during the probationary period. Your employer may therefore dismiss you even if you are ill. However, illness must not be the reason for the dismissal; that could constitute discrimination on grounds of disability or chronic illness. If you were dismissed while sick and suspect that this was the real reason, it is advisable to seek legal advice.
We're happy to help you brainstorm ideas. For advice tailored to your specific situation, we'd be happy to sit down with you. No rights can be derived from the content of this page and it may contain inaccuracies.
