By Claire Vogel, Firm: Bronsgeest Deur

A recent Supreme Court case has given guidance on the factors that will be taken into consideration in assessing an employer’s duty to assist an employee to improve low performance.

An employee's inability to perform his or her agreed work is one of the legal grounds for dismissal. This requires, among other things, that the employee is informed of his or her low performance in a timely manner and has been given sufficient opportunity to improve his or her performance. In addition, the low performance cannot be the result of inadequate care from the employer. The question is how far the employer’s duty of care reaches.

Last month, the Supreme Court expressed its opinion on what assistance, support and guidance may be expected from the employer in a specific case. The Supreme Court emphasised that the law does not determine the manner in which the employer must provide the employee with an opportunity to improve the performance. In view of the major consequences that a dismissal on the grounds of low performance can have, however, the employer is required to offer the employee a serious and realistic opportunity for improvement. What may be expected from the employer in a specific case and how this should be recorded, depends on the circumstances of the case.

The following circumstances may play a role:

  • the nature, content and level of the position;
  • the (level of) education and experience of the employee;
  • the nature and extent of the low performance;
  • the duration of the low performance measured from the moment the employee was informed of it;
  • the duration of the employment;
  • performance-improving actions that have been undertaken;
  • the extent to which the employee is open to criticism and is committed to improvement;
  • the nature and size of the company.

In the case in question, the Supreme Court ruled that the employer, given the circumstances, had given the employee sufficient opportunity to improve the low performance. The responsibility to achieve improvement, however, was also (partly) the employee’s responsibility. It concerned a managing consultant at a consultancy firm with several low performance evaluations. The employee was informed about her low performance over a longer period of time, and the low performance was expressed in a failure to meet sales targets, unsatisfactory communication, internal conflicts and insufficient collaboration with colleagues and customers, a lack of self-awareness and inability to handle feedback.

The employer indicated that the employee should undertake a self-assessment and seek to understand the nature of her low performance. The employee was invited to think about how improvement could be achieved (by means of what specific measures or training) and within what period. However, the employee showed insufficient initiative. This Supreme Court decision shows that under certain circumstances the responsibility for achieving improvement can be partially the employee’s responsibility. In that respect, improvement is a joint effort from both the employer and the employee.

Changes to the dismissal regime in the Balanced Labour Market Act

From 1 January 2020, a ‘cumulative ground’ will be introduced under the Balanced Labour Market Act (WAB). This means that the court may also come to a dismissal based on a combination of dismissal grounds, for example, a combination of a low performance case and a disturbed employment relationship case. If the low performance file is insufficient in itself, adding a disturbed employment relationship file could justify dismissal. This cumulative ground is referred to as the ‘i-ground’ and in the event of a dismissal based on the i-ground, the court can grant the employee additional compensation of up to half the ‘transition payment’ (statutory severance payment) on top of the transition payment that is already due. Details of the WAB are available here.