An employer may try to dismiss an employee for underperformance. This means that the employee is not properly performing their role. Dismissal for that reason is common, but legally it is not straightforward: the employer must follow strict rules and cannot simply dismiss.
In this article, we explain what underperformance entails, how the procedure works, and how you can defend yourself against it.
What is underperformance?
Underperformance means that the employee consistently performs inadequately in their position. For example:
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The work is not performed properly.
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There are systematic errors or insufficient results.
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The employee does not collaborate well or communicates poorly.
👉 An occasional mistake or a one-off error is not poor performance.
When is dismissal for poor performance allowed?
The law sets strict conditions. An employer can only request dismissal for poor performance if:
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It is clear what is not going well.
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The employee has been timely informed of this.
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The employee a realistic improvement plan has been given.
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Reassignment to another position is not possible.
Without an improvement plan or clear feedback, dismissal for poor performance usually cannot succeed.
The improvement plan
An employer must give the employee the opportunity to improve. This happens in an improvement plan, which may consist of, for example:
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Clear agreements about performance.
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Additional guidance or coaching.
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Education or training.
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Regular evaluations and written reports.
An improvement plan usually lasts at least several months.
Procedure for dismissal due to underperformance
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The employer can the subdistrict court judge ask to terminate the employment contract.
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The judge assesses whether there is indeed underperformance and whether an improvement plan has been followed.
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If the employer cannot demonstrate this, the request is often denied.
Severance pay for underperformance
If you are dismissed for underperformance, you are entitled to the transition payment.
If the employer has acted in a seriously culpable way (for example, by not offering an improvement plan), you can also claim a fair compensation.
Examples from practice
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Example 1: An employee did not receive clear feedback, but was nevertheless dismissed for underperformance. The court rejected the termination request.
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Example 2: An employee received an improvement plan with coaching and courses, but showed no improvement. The judge terminated the contract.
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Example 3: An employee was given no opportunity to improve. Besides the transition compensation, the judge awarded an additional fair compensation.
Checklist for dismissal due to underperformance
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📑 Did you receive clear feedback about your performance?
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📝 Did you receive an improvement plan with specific agreements?
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⏳ Did the improvement process last long enough (usually several months)?
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📅 Was redeployment to another position considered?
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⚖️ Have your situation legally reviewed before you agree to termination.
Common mistakes
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Employers initiate dismissal without an improvement plan.
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Employees sign a settlement agreement too quickly.
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Not keeping records of evaluations, reports, and meetings.
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Thinking that poor performance automatically means dismissal.
Frequently Asked Questions (FAQ)
1. Can I be dismissed for poor performance without an improvement plan?
No, an improvement plan is mandatory.
2. How long does an improvement plan take?
Usually a few months, depending on the role and circumstances.
3. Will I receive compensation upon dismissal due to underperformance?
Yes, at least the statutory transition payment.
4. Can I contest a dismissal for underperformance?
Yes, you can present your defense before the subdistrict court judge.
5. What if my employer pressures me to sign a settlement agreement (VSO)?
Always have it legally reviewed; you can often negotiate better terms.
Why Arslan Advocaten?
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Specialized in employment law and dismissal cases
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Assessing whether invoking underperformance is justified
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Support with performance improvement plans and negotiations
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Regularly achieve higher compensation or reinstatement of employment
Conclusion
Dismissal for poor performance is only possible if the employer strictly follows the rules. Without an improvement plan and clear feedback, dismissal is often invalid. As an employee, you therefore have a strong position and the right to protection and compensation.
Frequently Asked Questions
What constitutes poor performance that could lead to dismissal?
Poor performance involves consistent inadequate work, such as systematic errors, insufficient results, or poor communication. Occasional mistakes or one-off errors do not qualify as poor performance.
Can an employer dismiss me for poor performance without following proper procedures?
No, the employer must follow strict legal rules, including providing clear feedback, an improvement plan, and opportunities to improve before considering dismissal. Without these steps, a dismissal for poor performance is usually not legally valid.
What rights do I have if I am dismissed for poor performance?
You are entitled to a transition payment if dismissed for underperformance, and if the employer acted in a seriously culpable way, you may also claim fair compensation. Ensuring proper procedures were followed is key to defending your rights.
How does the legal process work if I want to contest a dismissal for poor performance?
The employer must request a subdistrict court judge to terminate your employment, who will assess whether underperformance exists and if proper procedures, like an improvement plan, were followed. If not, the judge may deny the dismissal and award compensation.