In many cases, uncertainty on the employee's side regarding the conditions and circumstances of the work and uncertainty on the employer's side regarding the employee's abilities prompt the parties to provide for a probationary period before definitely committing themselves, i.e. a period during which, through normal performance of the contract of employment , they can form a clear picture of their mutual rights and obligations. This is done by means of a probation clause.
A probation clause can be defined as a clause in a contract of employment whereby the aim of the parties, with a view to a definite contract of employment, is to gain a clear insight into their mutual rights and obligations over a short period during which they are free to terminate the contract without observing the usual regulations guaranteeing job security.
It is a clause that can be written into an open-ended employment contract , a fixed-term employment contract or employment contract for a specified task , a replacement employment contract or a temporary employment contract, and is not in itself another type of contract. This means that no further expression of intention is necessary to make the contract of employment definite. When the probationary period expires the contract becomes definite, automatically and without any action by the parties. The contract of employment came into being as soon as the contract was concluded. The probation clause merely serves to defer certain legal consequences, notably the manner of terminating the contract, until a subsequent point in time, i.e. when the probationary period expires.
Probation differs fundamentally from the selection test, the training stage and the apprenticeship contract .
Belgian law lays down special requirements on the matter. As in the case of a fixed-term employment contract and employment contract for a specified task, the probation clause must likewise be drawn up in writing for each employee individually, and no later than at the time when the employee commences the employment. Here too, then, there are three requirements:
1. it must be drawn up in writing: an ordinary letter will suffice, on condition that the agreement of both parties is clearly indicated in it;
2. the written document must be drawn up separately for each employee: a statement in the work rules or in a collective agreement will not suffice;
3. the written document must be drawn up no later than at the time when the employee commences the employment. This does not necessarily coincide with the time at which the contract of employment is concluded. Only the probation clause has to be in writing. Only the principle of the probationary period has to be stated. The other terms and conditions are not subject to these requirements, not even the duration of the probationary period, which can validly be stated in the work rules or in a collective agreement, or agreed orally.
The requirement as to form is a condition of the validity of the probation clause. This is expressly stipulated by law: "... on pain of nullity, the clause must be drawn up separately in writing for each blue-collar (white-collar) worker, no later than at the time when the blue-collar (white-collar) worker commences the employment." This nullity concerns only the probation clause, not the contract of employment as a whole. The contract of employment will therefore become definite immediately, which means that termination is possible only subject to observance of the regulations governing job security.
The fact that the written document does not merely constitute proof but is actually a condition of validity means that the usual standard of proof does not apply: if no written document exists, probation cannot be proven by oath, affirmation or witness.
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.