Dysfunctional employee: no well-defined implementation of improvement plan

Dismissing an employee for poor performance is only possible if you have first offered them a serious and realistic opportunity for improvement. The law does not prescribe exactly what such an improvement plan must look like: that depends on the specific circumstances. However, the Supreme Court has formulated a number of criteria by which the sub-district court judge assesses whether you have done enough. Importantly in this regard: the responsibility does not lie solely with you as the employer. Depending on their position and experience, a certain degree of self-insight and the ability to make corrective adjustments may also be expected from an employee.

What is dysfunction in a legal sense?

Poor performance means that an employee is unfit to perform their work, other than due to illness or disability. In dismissal law, this is the so-called d-ground. To be able to dismiss on this ground, you, as an employer, must demonstrate that:

• the employee consistently underperforms in his position;
• you have let him know in time that he is falling short;
• you have offered him a realistic chance to improve his performance;
• the dysfunction is not the result of insufficient training or poor working conditions;
• reassignment to another suitable position is not possible or not reasonable.

A single bad review is therefore not enough. It is about a demonstrable, carefully built dossier.

What requirements must an improvement process meet?

There are no general guidelines that prescribe exactly what efforts are expected of an employer. The court assesses whether an improvement plan is sufficient based on all the circumstances of the case. The Supreme Court mentions, among others, the following viewpoints:

• the nature, content and level of the position;
• the education and experience of the employee;
• the nature and extent of the incapacity;
• the duration of the unsatisfactory performance from the moment the employee was informed thereof;
• the steps previously taken by both employer and employee;
• the duration of employment;
• the extent to which the employee commits to improving;
• the nature and size of the employer's business.

The more is at stake for the employee, the more careful the process must be. A large company with a substantial HR department can be held accountable for more than a small enterprise with limited resources.

The steps of a careful improvement process

In practice, a sustainable improvement process almost always comes down to these steps:

1. State the problem concretely. Make clear what is and is not going well, preferably with measurable examples.
2. Set achievable improvement goals with a reasonable timeframe to achieve them.
3. Offer support, such as guidance, coaching, or training where necessary.
4. Conduct interim evaluations and record the outcomes in writing.
5. Be clear about the consequences if no improvement occurs.
6. Build a file and keep everything in the personnel file.

Practical example: from vague criticism to a sustainable dossier

An account manager has failed to meet his sales targets for months. The employer complains about it behind the scenes but records nothing and offers no guidance. The dismissal fails at the subdistrict court: there is no written warning, no concrete improvement plan, and no support offered. In a second process, the employer takes a different approach. During a meeting, he records which targets are not being met, agrees on measurable goals for the coming period, links sales training to them, and schedules interim evaluations. If improvement still fails to materialize, there is suddenly a file that can withstand scrutiny. The difference lies not in the criticism itself, but in the care with which it is substantiated and documented.

Not only the responsibility of the employer

The Supreme Court has clarified that the initiative need not originate solely from the employer. Depending on the position and work experience, a certain degree of self-insight and corrective ability be expected from an employee. In many cases, an employee may be asked to demonstrate insight into the areas where they fall short and to actively contribute ideas for improvement.

This applies more strictly, especially in higher positions. It can be assumed more readily that someone in a managerial or senior position can identify the measures needed to perform better, including the appropriate training. In such a case, the employer's efforts need not go as far as for an employee in a simpler position with limited education or experience.

The role of training and redeployment

Two things are often underestimated. First, the poor performance must not stem from insufficient care regarding training . If you have never given him the opportunity to develop, a judge may reject the dismissal.

In addition, you must investigate whether reassignment to another suitable position is possible, possibly with the help of training. Only if that is not a realistic option either does dismissal due to poor performance truly come into play. Document this assessment in writing as well.

What if improvement fails to materialize?

If no positive development occurs, despite a careful process, you can terminate the employment contract . This can be done in two ways:

• By mutual consent, via a settlement agreement. This is often faster and less burdensome, provided both parties agree.
• Via the subdistrict court judge, who assesses whether the file and the improvement plan are sufficient. If that assessment fails, the judge rejects the dismissal or awards higher compensation.

Because the judge scrutinizes the case file closely, good preparation is crucial. Have a legal expert review it before you take the step to the sub-district court.

Frequently asked questions about dismissal due to poor performance

How long should an improvement process last?

There is no fixed term stipulated in the law. The appropriate duration depends on, among other things, the position, the nature of the poor performance, and the complexity of the areas for improvement. The employee must be given a realistic opportunity to actually improve their performance; a process of a few weeks is generally too short.

Can I dismiss an employee without a performance improvement plan?

In the case of dismissal on the grounds of d, the judge almost always expects that the employee has first been given a serious opportunity for improvement. Without that process, there is a high probability that the dismissal will be rejected. Only in exceptional situations might this be different.

What belongs in the personnel file?

Document what is not going well, what agreements you have made, what support you have offered, and how the interim evaluations went. Performance review reports, emails, and the improvement plan together constitute evidence that you have acted diligently.

Does the employee's own responsibility count?

Yes. Depending on the position and experience, self-awareness and the ability to correct behavior may be expected from an employee. If an employee does not cooperate or shows no insight whatsoever into their shortcomings, this can work to your advantage.

What if the employee can get another suitable position?

In that case, reassignment is the more logical choice than dismissal. You must seriously investigate that possibility and substantiate the outcome in writing before proceeding with termination.

Have your improvement plan legally reviewed

Dismissal due to poor performance stands or falls with a carefully constructed file. Are you unsure whether your improvement plan will stand up to scrutiny by the sub-district court judge, or do you want to arrange a termination properly? The employment lawyers at MKB Juristen will think along with you, review your file, and draft the appropriate documents where necessary.

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