Probation period ≠ license to discriminate

A recent ruling by the subdistrict court in Utrecht clearly illustrates this once again. An employee joined a biotech start-up that focuses on developing cancer therapies as a researcher. On her first day at work, she announced that she was pregnant. Two days later (after the weekend), she was dismissed during her probationary period. According to the employer, this was due to sudden financial setbacks.

That story did not hold up.

Less than ten days later, a vacancy for exactly the same position appeared. And not much later, another researcher was actually hired. It is remarkable that the financial situation would suddenly improve within such a short period of time. The subdistrict court therefore did not consider the employer's stated reason to be plausible. The employer's conduct could only lead to the conclusion that the pregnancy was the reason for the dismissal during the probationary period. The defense that the employer was unaware of the pregnancy was also rejected: a direct supervisor did know about it, and that knowledge is attributed to the employer.

The bottom line: yes, an employment contract may be terminated during the probationary period. In principle, a financial reason is a valid reason for dismissal during the probationary period. However, this does not apply if the real reason is discriminatory. Pregnancy is direct discrimination on the basis of gender. 

The result? The dismissal during the probationary period was not legally valid and was overturned. The employment contract continued, with the right to wages. The statutory increase was also awarded, moderated to 25%, plus statutory interest. In practice, this can result in wages being owed for a period during which hardly any work was done. The employee did not actually have to work a single day for this: the ruling dates from December 29 and she was due to give birth in January. Maternity leave had probably already started by then. Non-material damages were rejected because it had not been established that she had suffered mental injury.

This ruling is a clear warning to employers: any appeal to financial reasons must be consistent and credible. More importantly, pregnancy must never, even implicitly, play a role in dismissal, not even during the probationary period.

A link to the ruling can be found here.

Do you have questions about the probationary period or the dismissal of an employee? Please contact Dennis Oud, Elke Hofman-Bijvank, or Tessa Sipkema.