Dismissal due to poor performance
202511.06
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Dismissal due to poor performance

An employer who wants to terminate the employment contract because of poor performance must build a good dossier. The court will assess whether there is unfitness for the work that is not caused by illness, defects, or the working conditions. The employee must have been addressed about his performance in a timely and clear manner and have had a sufficient opportunity to improve his performance. Only if reassignment within a reasonable period is not possible or not reasonable, can dissolution follow.

The importance of a careful improvement process

The Supreme Court emphasized in the Ecofys ruling of 2019 that a performance improvement process must be tailored. What can be expected of the employer depends on the specific circumstances. Among other things, the nature and level of the position, the employee’s education and experience, the seriousness of the underperformance and the length of the employment relationship play a role. Also relevant is what has already been done to improve performance and the extent to which the employee is open to feedback and improvement.

Some points to note from case law:

  • The simpler the role, the shorter the improvement process may be (at least about six weeks, for more complex roles rather six to nine months).
  • A longer employment relationship generally requires more effort from the employer (think of offering coaching or training). The size of the company also partly determines the degree of support the employer must reasonably provide.
  • In higher positions, more initiative may be expected of the employee.
  • The improvement period starts at the moment the employee clearly knows what needs to be improved.
  • The improvement period starts at the moment the employee clearly knows what needs to be improved.

Conclusion:

A successful dismissal for poor performance requires a carefully compiled dossier and a fair improvement process. Both employer and employee have an active role in that. It is not easy, but it is possible.

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