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It sometimes happens that an employee does perform sufficiently and the employer, often after one or more negative appraisals, wants to terminate the employment contract. The first question we then ask is: “Is there a file?” It often turns out that this is the stumbling block in a preferably efficient dismissal procedure. In this article, I will therefore explain how to build a strong (dismissal) case.

What does the law say?

The employment contract can be terminated because of:

  1. The incapacity of the employee to perform the stipulated work, other than as a result of illness or disability of the employee, provided that the employee
  2. was informed in good time and to a sufficient extent
  3. has been given the opportunity to improve his/her performance, and
  4. the incapacity is not the result of insufficient care on the part of the employer for training of the employee or for the employee’s working conditions

Case building starts on day one

Agree

Ideally, the employment contract, the job description, the staff handbook and any company rules already describe what the employer expects of the employee. These documents can form the basis for a discussion about the employee’s performance, both positive and negative.

Perform

During the employee’s career discussions will take place about the employee’s performance, during which any points for improvement (on both sides) can be identified and discussed. Of course, the things that are going (well) will also be discussed.

Determine

When it appears that the employee’s performance lags behind expectations, it is time for the employer to identify what is wrong and why. Is it a case of ‘not being able to’, which indicates underperformance, or of ‘not wanting to’, which could be more of a problem in the working relationship. NB: of course this dividing line cannot be drawn so clearly in practice.

Confront

Subsequently, the employer will have to enter into a timely dialogue with the employee about the underperformance. This is one of the most important moments in the case building process and the starting point for an improvement plan. In concrete terms, this means:

  • Describe the identified shortcoming(s) as concretely as possible and indicate with practical examples what and especially how to improve. Avoid vague descriptions such as “lack of the right attitude”, “lack of professional skills”, “incorrect work attitude”, “lack of communication”.
  • Determine the intended result (as objectively measurable as possible)
  • Determine the duration of the improvement plan
  • Specify that and when there will be interim evaluation moments (e.g. every two weeks)
  • Provide help, support and guidance (e.g. coaching, training, courses)
  • State the consequences if the intended result is not achieved

The plan must be aimed at improvement and the employee must be given a real and fair chance to improve his/her performance. The employer and the employee are jointly responsible for drawing up the improvement plan; the employer has an active role in implementing the improvement plan. The employee does not have to agree to the reason and content of the improvement plan; ultimately it is the employer that determines.

A question that is often asked is how long an improvement plan should take. The answer is ‘a reasonable period of time’. What that is depends, among other things, on what exactly the underperformance consists of. If it concerns something that the employee can master within a short period of time, the process does not need to be very long. If a course or training is necessary before the employee can improve sufficiently, then the process will have to take a lot longer.

In order to determine what help, support and guidance may be expected from the employer in a specific case, the following circumstances are important:

  • the nature, content and level of the job,
  • the experience and the level of education of the employee,
  • the nature and degree of underperformance,
  • the duration of the underperformance from the moment the employee was informed of it,
  • the duration of the employment,
  • what has been done in the past to improve performance,
  • and the nature and size of the employer’s business.

Evaluate

Mid-term reviews

In the mid-term evaluations, the points from the improvement plan are discussed one by one and it is established whether the agreements made have been fulfilled and/or the goals set have been achieved.

Each step in the process of case building needs to be recorded in writing, which written record needs to be sent to the employee. If possible, have the employee sign for approval or receipt. At this stage it is also important that any shortcoming(s) are clearly described and not sugarcoated.

Final evaluation

At the end of the improvement plan, an evaluation is made of whether the employee has improved his/her functioning sufficiently. It is not wise to end the improvement process prematurely, even when the employee clearly shows insufficient improvement. However, it is wise to make a written final evaluation of the improvement process even when it has been successful, in which, for example, any points of attention can be mentioned and perhaps a future evaluation date can be agreed.

When the conclusion is drawn that the performance has not improved enough, this must of course be explained and then the consequences must be determined. In some cases, an extension of the improvement process may be appropriate. If this is not the case, it should be examined whether the employee can be reassigned to another (lower) function. Only when it is clear that there is no place for this employee at the employer, dismissal may follow, either by mutual agreement (a termination agreement) or by means of a dissolution procedure at the subdistrict court.

Building up a strong dismissal case requires the necessary knowledge and experience. Should you have any questions about this, please contact Natascha Niewold, or one of our other employment lawyers.