The importance of an improvement plan for underperforming employees

You cannot simply dismiss a poorly performing employee: you must first give him a realistic chance to improve his performance through an improvement process, with an improvement plan as an indispensable document. If you fail to do so, or do so inadequately, the court will almost always reject a dismissal due to poor performance. Below, you can read what an improvement plan is, how to draw it up, what timeframe is reasonable, and what the options are in the event of persistent poor performance.

Why is an improvement plan mandatory in cases of poor performance?

As an employer, you are expected to actively attempt to improve an employee's performance before dismissal becomes a possibility. An improvement plan must offer the employee a reasonable chance and opportunity to improve. This entails that you:

• provides the necessary support;
• monitors progress;
• the employee hears regularly and provides feedback.

If the judge rules that you have done too little, a request for dismissal on the grounds of poor performance is almost always rejected. The improvement plan serves as proof that you have taken your obligations seriously.

What is an improvement plan?

An improvement plan (also known as a development plan) contains the agreements to improve performance within a reasonable timeframe. In the plan, you include, among other things:

• what the concrete points for improvement are;
• which job requirements the employee must meet within the timeframe;
• what that term is;
• what support and guidance the employee receives;
• what the consequences are if the goals are not met.

Important: formulate the improvement points SMART method — specific, measurable, acceptable, realistic, and time-bound. “Realistic” is especially important: an employee is not required to agree to unachievable goals.

Who draws up the improvement plan?

The success of the process is a shared responsibility of both employer and employee. Usually, both parties draw up the improvement plan in mutual consultation: you know what is expected of the employee, and the employee often knows well in which areas he needs to develop. Sometimes the employer draws up the plan. Case law shows that sometimes the employee may even be expected to draw up a concrete improvement plan himself based on the feedback.

An improvement plan typically follows an appraisal or performance review in which it was made clear that performance is no longer satisfactory. Document this meeting and the agreements in writing.

What timeframe is reasonable?

The employee must be given a reasonable period of time to improve. The law does not specify a fixed duration; what is reasonable depends on various factors, such as:

• the duration of employment;
• the stated job requirements;
• the nature and severity of the dysfunction.

In practice, most improvement processes take approximately three to six months, but this can vary depending on the situation.

What are the consequences of permanent dysfunction?

If the final evaluation reveals that the goals have not been achieved, there are several possibilities:

• reassignment to another suitable position;
• a change of function;
• as a last resort: dismissal for poor performance.

Reassignment and a change of position should be preferred over dismissal. Dismissal is the final step, not the starting point.

Frequently Asked Questions

Can I dismiss a dysfunctional employee immediately?

In principle, no. You must first go through an improvement plan and offer the employee a realistic chance. Without a thorough process, the court will almost always reject a dismissal due to poor performance.

How long should an improvement process last?

The law does not set a fixed term. What is reasonable depends on the employment relationship, the requirements, and the nature of the poor performance. Three to six months is customary.

Does the employee have to agree to the improvement plan?

The goals must be realistic and achievable. The employee is not obliged to agree to unrealistic demands. Good agreements reached through mutual consultation increase the chances of success as well as the evidential value.

What if the improvement plan is not achieved?

Then reassignment, a change of position, or—as a last resort—dismissal due to poor performance come into play. A well-documented process is essential in such cases.

Need help with an improvement plan or dysfunction?

An improvement process is legally meticulous work: one mistake in the design or execution can render a later dismissal impossible. Therefore, seek timely advice on a sound improvement plan and the building of the case file.

Our employment law assist you in drafting an improvement plan and the steps to take in cases of persistent underperformance. Schedule a no-obligation intake consultation.