international employment law firm alliance L&E Global

The Netherlands: The Supreme Court provides viewpoints for the improvement plan in case of unsatisfactory performance

Termination of the employment agreement due to inadequate performance. What can be expected from the employer at improving the employee’s performance, together with the recording, depends on the circumstances of the case. Verification against viewpoints.

The help, support and guidance that can be expected from the employer in a specific case, in order to improve the employee’s performance, as well as the way in which all this must be laid down, depends on the circumstances of the case. In this connection the nature, the content and the level of the position, the education and experience which the employee has, the nature and extent of the employee’s unsuitability, the duration of the poor performance from the moment that the employee has been informed of this, the duration of the employment, what had already been undertaken in the past to improve the performance, the extent to which the employee is open to criticism and is committed to improvement, and the nature and size of the employer’s business may all play a role.

In the present case, the Court of Appeal took into account the circumstances that the position of the employee entailed, including among other things, actively looking for cooperation with others, encouraging others to cooperate and solving conflicts independently in a project team, that the employee had already been aware of feedback about her performance since 2014 and that the unsuitability of the employee was partly due to insufficient communication, internal conflicts and insufficient cooperation with colleagues and clients, as well as a lack of self-reflection and inability to handle feedback. On this basis, the Court held that improvement is conditional upon the employee herself, understanding in what aspects she is failing and that she pools her thoughts about the way in which an improvement could be achieved, and within what period.

The Court of Appeal established that the employer provided the employee with fairly intensive guidance through talks and feedback in any event from September 2016 onwards – and from October 2016 through talks and feedback from the plan drawn up by the employee – in a process which aimed to achieve improvement of her performance. The Court added to this that the employee, considering the level of her position and her work experience, could herself have shown insight into her improvement areas and could have made it known, which specific measures or courses she needed in order to improve her performance.

Finally, the Court of Appeal considered that the employer came to the conclusion in March 2017 that the employee still had not succeeded in showing how she thought to achieve an improvement with regard to the material criticisms of her performance. These considerations brought the Court to the judgement that the employer had given sufficient opportunities to the employee to improve her performance.