Dismissal for Underperformance: 10-Step Legal Checklist
Thinking about dismissal due to underperformance?
Dutch employment law sets strict conditions for dismissing an employee based on underperformance. The subdistrict court will only grant termination if the employee has been clearly informed of their shortcomings and given a fair chance to improve. Illness or disability cannot be the cause, and the employer must meet both training and reassignment obligations. Below is a practical 10-step plan to help employers navigate this legal process.
Step 1: Address the issue
Discuss the performance issues with the employee both verbally and in writing. This can be done during regular evaluation cycles or separately. Be honest, offer support, and avoid surprising the employee with unexpected criticism.
Step 2: Confirm underperformance
Establish that the employee is indeed unfit for their role. Compare their performance against the job description, which should be clear and up to date.
Step 3: Check for illness or disability
Make sure the underperformance is not caused by health issues or disability. Examples include chronic illness (e.g., ME) or a physical/mental impairment. If there is a link, dismissal on this ground is not allowed.
Step 4: Employer’s training and support duties
The underperformance must not stem from the employer’s failure to provide necessary training or suitable working conditions. Employers are required to support the employee with training that enables them to fulfil their role.
Step 5: Draft an improvement plan
This should include: the reason for the plan (with concrete examples), a clear improvement goal, connection to job requirements, timeline, any coaching or training offered, frequency of evaluations, and the consequences of not reaching the target. Allow the employee to respond and ask for their commitment.
Step 6: Give a final warning
Clearly and in writing, inform the employee that if performance does not improve sufficiently and sustainably, continuation in the role is not feasible and dismissal may follow.
Step 7: Monitor and document
Evaluate progress regularly (e.g., every two weeks). Record all evaluations in writing. Be clear and honest. Provide specific examples. Adjust the improvement plan if necessary.
Step 8: Final evaluation meeting
After completing the improvement process, hold a final meeting to assess whether the employee has met the improvement goals. This meeting serves as a summary of the entire process.
Step 9: Explore suitable alternatives
Employers are legally required to investigate whether there are suitable alternative roles available for the employee, with or without additional training, within a reasonable timeframe.
Step 10: Dismissal
If the conclusion is that improvement has not been achieved and no alternative position is available, you may proceed with dismissal. This can be done by negotiating a settlement agreement or submitting a request to the court to dissolve the employment contract.
Conclusion
A legally sound dismissal for underperformance requires a structured approach, including timely warnings, documented evaluations, and a fair chance for the employee to improve. Following these 10 steps helps employers minimise legal risks and build a solid case.
This blog was written by Mr. Stijn Blom
Employment law attorney at expatlawyer.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs on a daily basis with a wide range of employment law issues. From dismissal cases to drafting watertight agreements and regulations – with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn’s page.
Expatlawyer.nl is happy to think along with you if you have questions about the topic of dismissal feel free to get in touch.
June 2025
