An employment contract concluded for a fixed term may include a probationary period.
Where the contract does not indicate a specific contractual period, the probationary period is calculated by reference to the minimum duration of the contract.
The probationary period possibly agreed between the parties may not be less than two weeks, nor more than the durations referred to in FAQ D3a3 , nor more than one quarter of the duration fixed in the fixed-term contract or of the minimum duration for which the fixed-term contract was concluded.
Example 1
In case of a fixed-term contract of 12 months, the probationary period possibly agreed between the parties may under no circumstances exceed (12 months / 4) 3 months.
Example 2
In case of a fixed-term contract of 5 months, the probationary period possibly agreed between the parties may under no circumstances exceed (5 months / 4) 1,25 months.
As a probationary period exceeding one month must be expressed in whole months (see FAQ D3a4) , the probationary period that can be agreed between the parties must under no circumstances exceed one month.
Nota bene
The Labour Code also stipulates that a probationary period not exceeding one month must be expressed in whole weeks. Therefore, in principle, it is not possible to stipulate a probationary period of one month.
However, in the specific case where, by application of the rule that the probationary period may not be more than one quarter of the duration fixed in the fixed-term contract or of the minimum duration for which the fixed-term contract was concluded, the maximum probationary period obtained is more than one month (and less than 2 months), the ITM is of the opinion that the probationary period must as an exception be of one month, as in the previous example.
In this case, the length of the probationary period should be rounded down and expressed in months, in order to comply as closely as possible with the maximum length initially obtained and to comply with the rule that probationary periods exceeding one month must be expressed in whole months.
Example 3
In case of a fixed-term employment contract of 4 weeks, the probationary period possibly agreed between the parties may under no circumstances exceed (4 weeks / 4) 1 week.
As a probationary period cannot be less than two weeks, it follows that a fixed-term employment contract of 4weeks should not be permitted to include a probationary period.
As a result, fixed-term employment contracts of less than two months should not be permitted to contain a probationary period.
The duration of the probationary period is taken into account in calculating the maximum duration of the contract.
However, in case of the conclusion of a new fixed-term contract or a contract of indeterminate duration, the latter may not provide for a further probationary period, by virtue of the principle that a probationary period is not to be renewed.