Dismissal During Probation and Settlement Agreements: What Are Your Options?

Are you receiving a settlement agreement following dismissal during a probationary period? Below you can read what to look out for when dealing with dismissal during a probationary period and a settlement agreement.

If you are dismissed during your probationary period, it can feel as though you have little say in the matter. Yet there are more options than you might think, even if your employer places a settlement agreement on the table. Knowing what your rights are — and what is open to negotiation — can make a significant difference.

How dismissal during the probationary period works

The probationary period is intended as a mutual getting-to-know-you period. During that period, both you and your employer may terminate the employment contract with immediate effect, without any notice period or permission from UWV or the subdistrict court being required. The rules are laid down in Article 7:676 of the Dutch Civil Code. Your employer is not in principle required 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, is of equal duration for both you and your employer, and complies with the statutory maximum periods. For a contract of less than six months, a probationary period clause is not permitted at all. For a fixed-term contract of more than six months but less than two years, the maximum is one month, and for a contract of two years or longer, or a permanent contract, the maximum is two months. If the probationary period has been set at longer than the statutory maximum, or has not been agreed in writing, the clause is null and void and, legally speaking, there is no valid probationary period at all.

When is a dismissal during the probationary period not legally valid

Although the probationary period affords the employer considerable freedom, there are clear limits. Dismissal for a discriminatory reason is prohibited even during the probationary period. Examples include dismissal on grounds of pregnancy, chronic illness, religion, or any other protected characteristic. If your dismissal during the probationary period is in fact motivated by such a reason, you can challenge it before the court. There is, however, a strict time limit: the petition 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'. Have you previously had a contract with the same employer for comparable work, or did you join via a temporary staffing agency for the same role? In that case, a new probationary period can often not be agreed in the new contract. In such a situation, the dismissal could be legally challengeable.

The settlement agreement in the context of probationary period dismissal

Sometimes an employer chooses not to implement the probationary period dismissal unilaterally, but instead to offer you a settlement agreement (VSO). This may be a deliberate decision: the employer wishes to arrange the dismissal by mutual agreement and to avoid any dispute about the legal validity of the probationary period. In that case, a settlement agreement in the context of a probationary period dismissal actually gives you as an employee an opportunity to negotiate the terms.

Let er op dat je bij een settlement agreement you do not automatically have a right to a transition payment. That right arises by operation of law only in the case of unilateral dismissal. However, that does not mean you cannot negotiate anything: in a settlement agreement you can make arrangements for a voluntary severance payment, and that payment may even be higher than the statutory transition payment. Particularly if the employer has doubts about the legal validity of the probationary period, they may be willing to agree to a more generous settlement.

Transition payment and unemployment benefit (WW) upon 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 if the employment has been brief. The amount will of course be modest, as the payment is calculated on a pro-rata basis according to the number of days worked. But the principle applies: even in the case of a probationary period dismissal initiated by the employer, a claim exists.

Different rules apply to unemployment benefit (WW). To be entitled to WW, the initiative to end the employment must demonstrably lie with the employer, and you must not have played a blameworthy role in your dismissal. In the case of a settlement agreement, it is essential that the agreement contains a neutral reason for dismissal and that the employer's initiative is explicitly stated. If you resign yourself during the probationary period, you are not entitled to unemployment benefit (WW).

What can you do in practice after dismissal during the probationary period

The following steps will help you maintain an overview and put yourself in the strongest possible position:

• Check whether the probationary period is valid. Has it been recorded in writing, is it the same for both parties, and is it no longer than permitted by law?
• Request the reason for dismissal in writing. You have the right to know why you are being dismissed, and that reason may be decisive for your next steps.
• Assess whether discrimination or abuse of the probationary period is involved. Is a protected ground at play? If so, the dismissal may be open to challenge before the subdistrict court.
• Check whether the probationary period has already been used previously. In the case of successive employment or an earlier contract for the same role, the probationary period may be void.
• Do not wait too long if you wish to bring proceedings. The time limit for challenging a discriminatory dismissal during the probationary period is only two months.
• Negotiate a settlement agreement if one is on the table. Aim for compensation, a neutral reason for dismissal, and a correct end date for your WW entitlement.
• Always have the settlement agreement checked before you sign. Missing or incorrect provisions can have direct consequences for your income after dismissal.

Why Employment Lawyer Eindhoven

Dismissal during a probationary period often feels unexpected and unfair. At Arbeidsjurist Eindhoven, we know how to keep a clear head in such a situation and achieve the best possible outcome. Whether you want to know whether your probationary period was valid in the first place, or you would like a settlement agreement you have been offered to be reviewed and improved: we are here for you. Practical, personal, and straightforward. Contact us without obligation for an initial consultation. We are happy to discuss your options with you, including if you are based in the Eindhoven or Brabant region.

Frequently asked questions

Am I entitled to a transition payment if I am dismissed during my probationary period?

Yes, if you are dismissed on 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 entitlement to the statutory transition payment; you will need to negotiate this yourself.

Can I challenge a dismissal during my probationary period?

That depends on the circumstances. If the probationary period was not recorded 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 the probationary period. You must act promptly, however: a petition to the subdistrict court must be submitted within two months of the dismissal.

Why would an employer offer a settlement agreement in the event of a probationary-period dismissal rather than simply giving notice?

An employer sometimes opts for a settlement agreement because they want to avoid any dispute about the validity of the probationary period, or because they wish to arrange the dismissal by mutual agreement. For you as an employee, this actually creates room for negotiation: you can request a severance payment, a neutral reason for dismissal, and a correct end date that safeguards your entitlement to unemployment benefit (WW).

Am I entitled to unemployment benefit (WW) after a probationary-period dismissal by way of a settlement agreement?

In principle yes, provided the settlement agreement meets the UWV's requirements. The agreement must state 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 yourself, you are not entitled to unemployment benefit (WW). Always have the settlement agreement checked to avoid any unwelcome surprises afterwards.

May my employer dismiss me during the probationary period while I am off sick?

Yes, the prohibition on giving notice during sick leave does not apply during the probationary period. Your employer may therefore dismiss you even if you are ill. However, illness may not be the reason for the dismissal; that could constitute discrimination on the grounds of disability or chronic illness. If you have been dismissed while sick and suspect that this was the real reason, it is advisable to seek legal advice.

We are happy to think along with you. For advice tailored to your situation, we would be glad to talk. No rights can be derived from the content of this page and it may contain inaccuracies.