Put to the test: 6 months or 6 months and one day?

By law, a probationary period may only be agreed upon when the employment contract exceeds six months, that is, six months plus one day. An employer fires an employee during the probationary period. Not exciting you might think, but was the probationary period legally valid? The district judge found that it was not, but why not?

The employment contract stated the following: “The employee shall enter into the employer's service (...) with effect from February 08, 2024. The labor contract is entered into for the duration of six months and ends on August 08, 2024.” 

The duration of the employment contract then effectively amounts to six months and one day, thus a valid probationary period according to the employer. However, the employee in question assumed that the employment contract had only been entered into for six months, as this was also literally stated in the employment contract, thus no valid probationary period. 

Because of the ambiguity in the provision, the court looked at the so-called Haviltex standard. The what? The Haviltex standard means that you look not only at the words on the paper itself, but also at the parties' intentions and expectations of each other. A few factors also come into play. For example, whether they are professional business parties and whether they received legal help in drafting and/or reviewing the employment contract. 

The employee was not aware that you cannot agree a probationary period in an employment contract for only six months. Also, in her job interview, she had been verbally promised that the employment contract would be for six months. The only clue to the “extra day” lies in the end date. The subdistrict court ruled that it was not employee's intention to enter into the employment contract for six months and one day. In short, the probationary period clause is invalid. 

What was the consequence for employer? Employer had irregularly terminated the employment contract, requiring it to pay compensation. The employer got off pretty well, because the employee had only claimed salary for the notice period up to April 1 and not until the end of the contract (August 1). 

Employer be alert! A probationary clause in an employment contract for six months and one day is allowed, but explicitly state in the employment contract that the duration is for six months and one day, so that the intention of the parties is clear. To avoid confusion, we recommend offering an employment contract for seven months. However, if a collective bargaining agreement applies to the employment contract, check that collective bargaining agreement as well. Sometimes it contains different provisions that may make things different.

Are you in doubt or do you have a question about this? Please contact Dennis Oud, Tessa Sipkema or Elke Hofman. 

Read the ruling here

Translated with DeepL.com (free version)