Poor performance and the importance of building a file

Sooner or later, almost every employer has to deal with an employee who is not performing adequately. If this persists despite support from the employer, the employer often wishes to terminate the employment contract. However, dismissal on the grounds of poor performance (the so-called ‘d-ground’), in practice, proves to be one of the most difficult grounds for dismissal under Dutch employment law. It is no coincidence that only a limited proportion of dismissal requests on these grounds are granted. Claims based on the ‘d-ground’ regularly fail due to an inadequate case file. Nevertheless, under certain circumstances, the court may still find grounds to terminate the employment contract.

Dismissal on ‘D-grounds’

Poor performance is defined as a situation where an employee is unsuitable for carrying out the agreed duties, other than due to illness or disability. The law imposes strict requirements on termination on the grounds of poor performance. It is important that the employer clearly substantiates which job requirements the employee is failing to meet. The employer must inform the employee in good time of the concerns regarding their performance, so that the employee knows what is expected of them. The employee must also be given a genuine opportunity to improve their performance. This usually requires a performance improvement plan lasting several months (the duration depends on the circumstances of the case). During an improvement plan, the employer is expected to actively support the employee and, where necessary, offer coaching or training. In the context of building up the case file, it is crucial that the improvement plan is carefully documented. This involves specifically identifying (in writing) the areas for improvement and providing a clear overview of progress throughout the improvement plan. Both can be included in meeting minutes (which the employee is also entitled to view and comment on). Only in this way can it be demonstrated retrospectively that the employee was actually given a genuine opportunity to improve their performance.

Termination, but not on the ‘full’ D-ground

In a ruling by the Eindhoven District Court late last year, the employer sought termination on the grounds of the employee’s poor performance. This related, amongst other things, to the following: customers had indicated that they no longer wished to work with this employee, and colleagues were also experiencing difficulties in working together due to the employee’s attitude. The crux of the problem was, that the employee consistently avoided any discussion about his performance. The employer attempted on several occasions to raise the issue of the employee’s performance and wished to initiate a performance improvement plan. However, the employee consistently refused to engage in such discussions and maintained that his performance was perfectly satisfactory. He pointed out that he had received a good appraisal and a pay rise the previous year and that he possessed all the necessary technical knowledge and skills.

The subdistrict court finds that the employer has demonstrated to a sufficient degree that there are grounds for criticism regarding the employee’s performance and that improvement is necessary. After all, good performance involves more than just technical skills. Teamwork, communication and attitude also play an important role in the work. However, the employer has provided the employee with little or no written guidance as to what exactly constitutes unsatisfactory performance, how improvements are to be achieved, within what timeframe, and how the employer will offer support in this regard. There is no written record of the case. The court therefore ruled that the employment contract cannot be terminated on the ‘d-ground’. Furthermore, the court also ruled that the employment contract cannot be terminated on the ‘g- ground’ (disrupted working relationship) because, in its view, the disruption is not serious or lasting.

However, the court did find that the employer was justified in criticising the employee’s performance. The court also noted that the employee refused to accept this criticism, or at the very least refused to discuss the matter with his employer. Consequently, the employment contract was terminated on the ‘i-ground’: a combination of poor performance and a disrupted working relationship. Given the employee’s attitude towards his performance, there is no longer any way out of the impasse that has arisen and, according to the court, it is plausible that continuing the employment contract would be in vain.

For you as an employer

This ruling once again underlines that keeping record properly is crucial to achieving termination on the grounds of poor performance. Furthermore, this ruling confirms that the overall picture can indeed lead to termination if there is no single, fully substantiated ground.

As poor performance is one of the most challenging grounds for dismissal, seeking legal advice in good time can make all the difference. If you are facing difficulties with an under-performing employee, please do not hesitate to call us; we are happy to discuss the matter with you.