Trial Period for Temporary Employees Hired on a Permanent Basis

Belgian employment contracts often provide for a trial period, to ensure that the parties are a good fit. However, it could be argued that a trial period is unnecessary if the employee has previously worked for the employer through a temp agency.

During the trial period, either the employer or the employee can terminate the contract on short notice. It should be noted that a clause providing for a trial period in an open-ended, fixed-term or project-specific contract must be in writing and signed no later than the first day of employment.

In practice, however, employees often start to work for a company through a temp agency (uitzendkrachten/travailleurs intérimaires). If satisfied with their performance, the company may decide to hire the temporary workers on a permanent basis, in which case it will offer them an employment contract.

In this respect, the question arises as to whether a clause providing for a trial period can validly be included in an employment contract with a former temp worker.

There are no statutory provisions answering this question, and the case law is split on the subject. The majority opinion is that a clause providing for a trial period in an employment contract with a former temp worker, for performance of the same tasks, is invalid in the absence of an admissible basis for including it.

In a judgment of 15 November 2011, however, the Brussels Labour Court ruled that a trial period is acceptable under these circumstances. The court found that the employee had not proven that the company wished to render his situation more precarious by inserting the clause.

The most salient aspects of the judgment are the following:

- During the period of temporary work, the company did not unlawfully exercise any aspect of the employer's authority over the temp worker and, therefore, could not be considered the employer during this time. Thus, the trial period clause was signed no later than the employee's first official day of employment.

- The purpose of a trial period is to allow the parties to verify if they are a good fit. This assessment goes beyond a mere determination of whether the employee is able to perform the position in question:

- During the period of temporary work, the company is not entitled to exercise any aspect of the employer's authority over the employee (e.g. the company cannot dismiss the temporary worker, impose sanctions for failure to follow instructions or inadmissible behavior, etc.). Thus, relations between the parties are different once the temporary worker becomes an employee;

- Further, the integration of the employee within the company and his or her behavior with and attitude to hierarchical superiors and other employees are important. In this regard, the attitude and behaviour of employees and temp workers tend to differ widely;

- The employer's expectations for an employee are different than its expectations for a temp worker, who is only with the company for a short period of time, for example to replace an employee;

- A temp worker has more freedom not to work during certain periods. In the case at hand, the employee had requested holidays, without first asking the employer's permission.

For the above reasons, the court ruled that the trial period clause in the employment contract was valid and that the company had correctly terminated the employment contract during the trial period with 7 days' notice and did not have to pay additional compensation in lieu of notice, to which the employee would be entitled in the absence of a trial period.

It will be important to keep an eye on future decisions, to see if the above reasoning is confirmed and, consequently, if a trial period for former temporary workers becomes the new norm.