If an employee is not performing well, they may not be fired for that reason alone. Many Dutch employers think that sending an e-mail listing what the employee did not do well is sufficient for dismissal. In practice, the Dutch courts have found that this is short of the mark. An employer will first have to make the necessary effort to bring the dysfunctional employee into line. According to case law, an employee must (a) be given sufficient opportunity to improve functioning and (b) it must be clear that the dysfunction is not due to insufficient care in training the employee. In short, the employer must first establish a proper improvement plan. What are the requirements for the ‘improvement process’ required under Article 7:669(3)(d) of the Civil Code and an ‘improvement plan’ to be drawn up within that framework?
Dysfunctioning of an employee: dismissal?
Dysfunction can concern both:
- The performance of the job,
- or to the person of the employee (attitude or behavior).
Requirements to be met by the employee
In the first place it is required that:
- it is clear what requirements the employee must meet
- that these requirements are known to the employee,
- that the employee also knows what he is being judged on.
Usually this can be checked against the job profile associated with the position.
Timely notification of unsuitability
Furthermore, the employer must give the employee timely notice of the employee’s unfitness to perform the stipulated work. An employee cannot be told overnight, after the fact, that he will be fired for inadequate performance. The employee must have been given an adequate opportunity to improve his performance.
Thus, the employee should not be “caught off guard” by the dismissal for dysfunction. The employer must first have discussed the dysfunction with the employee.
Inadequate functioning of the employee must be recorded in writing
Preferably, the employee’s inadequate performance is recorded in writing, such as as part of appraisal interviews. This must have been made concrete using examples and translated into points for improvement.
No salary increase
If the employee is indeed not functioning well, then it is not wise to give signals that seem to contradict his judgment that the employee is dysfunctional, for example by granting a salary increase.
Contact must be aimed at a personal improvement plan
The contact must be aimed at improvement and not limited to merely “registering” or “reporting” the (allegedly) deficient performance.
A good personal improvement plan contains the following elements
According to Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2022:9956), an improvement plan in case of dysfunction should in principle contain the following elements:
-a description of the employee’s shortcomings,
-a description of the concrete and specific goals the employee should achieve
-within which time frame that should take place;
-the method of coaching the employee;
-concrete and measurable objectives to be achieved;
-when the final evaluation will take place;
-what the consequences are if the employee has not achieved the agreed upon final goals.
-serious and real opportunity for improvement
Only after all that has happened may the employer begin to think about dismissal.
The Netherlands Supreme Court is a little more lenient on this requirement. Serious and real opportunity for improvement must have been offered, but what help, support and guidance can be expected from the employer in a concrete case to improve the employee’s performance, as well as how this should be recorded, depends on the circumstances of the case.
What are the circumstances of the case?
What are those circumstances?
They may include:
-the nature,
-the content and
-the level of the job,
-the employee’s training and experience,
-the nature and degree of the employee’s unsuitability,
-the duration of the unsatisfactory performance from the time the employee was informed of it,
-the duration of the employment,
-what has been done in the past to improve performance,
-the extent to which the employee is open to criticism and committed to improvement,
-the nature and size of the employer’s business.
It is true that the Supreme Court gives the employer some leeway here, but in practice it appears that many subdistrict courts in The Netherlands still fall back on the requirements formulated by the Arnhem-Leeuwarden Court of Appeal in the above ruling.
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