Trial period agreed at too late a stage

It is stipulated in the Netherlands Civil Code that trial periods should always be agreed in writing, at the moment the employment contract in question is entered into. A definite employment contract whose term is shorter than two years may not involve a trial period in excess of one month. This may be departed from (to the employee’s detriment, to be sure) in the event that a Collective Labour Agreement (CLA) is in force.

The Arnhem‑Leeuwarden Court of Appeal recently found itself adjudicating a matter involving an employment contract with an overall term of nine months which had featured a two-month trial period, with the written contract itself not having been prepared or signed by the employer until the statutory one-month trial period had elapsed. The trial period clause was in breach of prevailing legislation. The employer, quoting the trial period clause, had dismissed the employee in question just before the latter had been able to complete his second month. The employer had belatedly invoked the trial period clause as per the CLA for Garden Centres, which it claimed applied. Not having been declared to be binding, the CLA in question failed, in fact, to bind either the employer or the employee as neither was a member of any of the parties between which the CLA had been concluded, which in turn implied that it was only by incorporation that the CLA could be deemed to apply to the employment contract. However, the employment contract featuring the incorporation clause had not been laid down in writing until after the date of expiry of the one month term, and it was now no longer possible to invoke against the employee the retroactive application of the CLA for Garden Centres where it concerned the extended trial period. The employer’s reliance on the oral agreement of the incorporation clause likewise failed to succeed: in the event that a trial period is based exclusively on an incorporation clause, the latter too is required to have been entered into in writing so as to make sure that the employee should know exactly where he or she was at. The invalid cancellation of the employment contract had rendered the employer liable for damages vis-à-vis the employee it had sent packing.