The probationary period may be provided for in one of the following two ways:
- either in the written employment contract, no later than the date on which the employee takes up employment;
- or in the collective agreement applicable to the company, where such agreement contains a provision stating that the employment contract of each newly hired employee shall be preceded by a probationary period.
If the above-mentioned formal requirements are not met, the clause providing for the probationary period shall be null and void, and the employment contract shall be deemed to have been concluded without a probationary period.
However, it should be noted that the Court has held that, where an employee has received an employment contract containing a probationary period, has not returned the signed contract to the employer, but has expressed their agreement to the employment contract (e.g. through an exchange of emails to that effect), the parties must be deemed to be bound by the employment contract and the probationary period shall apply, in order to prevent any abuse.
The information relating to the duration and conditions for applying the probationary period may be provided by a reference in the employment contract to the relevant legal, regulatory, administrative or statutory provisions, or collective agreements.
However, unlike the principle that the application of a probationary period must be provided for no later than the date on which the employee takes up employment, the information relating to the duration and conditions governing the application of the probationary period may, where applicable, be provided up to the seventh calendar day following the employee’s first day of work.
If the employer fails to provide these two pieces of information within the required time limit, the employee may initiate proceedings to compel the employer to provide them.
As a first step, the employee must send a formal notice to the employer. If, within fifteen days of this notification, the formal notice has not been acted upon, the employee may submit a simple application to the president of the labour court, who shall rule on an urgent basis and in summary proceedings, after hearing the parties or having duly summoned them, requesting that the employer be ordered, including under penalty of a daily fine, to provide the missing information.