The probationary clause must without fail be recorded:
- for each employee individually;
- in writing; and
- no later than the employee’s entry into service.
According to a judgment of the Court, if evidence is produced that the parties were, as from the employee’s entry into service, in agreement as to the existence of an employment relationship and a probationary period (for example, exchange of emails), that agreement validly serves as acceptance of the probationary period even if the contract had not been signed at the start of the employment relationship by the employee, although the employment contract providing for the probationary period had been sent to him.
In all cases, the probationary period may not be the subject of a parallel contract or an “unofficial” contract; all contractual stipulations, including those relating to the probationary period, must be incorporated in a single document.
Nota Bene
If the formal conditions are not fulfilled, the probationary clause is void and the employment contract is deemed to have been concluded without a probationary period.
It should be noted however that, where the collective work agreement applicable to the company contains a provision to the effect that the employment contract of each newly recruited employee will be preceded by a probationary period, the inclusion of a probationary clause in each individual employment contract is not required.