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Inadequate performance by the employee may, under circumstances, be grounds for termination of the employment agreement. For a request for dissolution to succeed, the following conditions must be met:

1. the inadequate performance must be made plausible;
2. the need for improvement must be made known to the employee in good time;
3. the employee must be given the opportunity to improve the performance;
4. the inadequate performance must not be the result of insufficient care by the employer for training or for the employee’s working conditions;
5. the consequences must be made clear if the performance does not improve.

What exactly can an employer be expected to do as part of performance improvement plan? What circumstances are relevant? We will give some guidance on this below:

Elements that are important in an improvement process

The following elements, among others, may play a role in what may be expected from the employer in the context of an improvement process and how this should be recorded (see: Supreme Court 14 June 2019 ECLI:NL:HR:2019:933):

(a) the nature, content and level of the job;
(b) the training and experience of the employee;
(c) the nature and degree of the employee’s malperformance;
(d) the duration of the unsatisfactory performance from the time the employee was informed of it;
(e) the duration of the employment;
(f) what action has already been taken in the past to improve performance;
(g) the extent to which the employee is open to criticism and committed to improvement;
(h) and the nature and size of the employer’s business.

Employer in principle determines job requirements

In principle it is the employer who determines how a position should be executed and what standards belong to that position. An employee can therefore be expected to at least start with the improvement plan, even if an employee does not agree (in all parts) with this plan. See: Subdistrict Court Rotterdam of 22 December 2022 (10097102 VZ VERZ 22-11757).

Of course, it is relevant that the improvement plan must be reasonable and that the employer and employee need to engage in a dialogue about the difference of opinion on the plan.

Who draws up the improvement plan?

In general, an employer will draw up the improvement plan, but higher-ranked employees in particular may also be expected in circumstances to come up with a plan themselves or at least provide input.

Timeline

The reasonable timeframe for an improvement plan depends partly on the circumstances mentioned above. As example: sometimes it can be expected to take six months while in other cases – e.g. when it related to simple unskilled work – six weeks may be enough (see: Leeuwarden Court of Appeal 24 August 2016 ECLI:NL:GHARL:2016:6796). However, in general the guideline is between three and six months.

What does an improvement plan look like?

There is no set format, but we recommend including at least the following items in a performance improvement plan:

• Description of what can be expected of the employee in the position and in which areas it is not being met. Mention concrete examples of the malperformance. Make clear what exactly is expected of the employee as part of the improvement plan.
• Duration of the process (see above) and when the final evaluation will take place.
• Guidance during the process. Consider coaching, a course/training or extra guidance during the work.
•  Agree that interim evaluations will take place, e.g. every fortnight.
• Include the consequences if there is no visible improvement in performance, e.g. that an adapted or different position or termination of employment will be considered.