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7 Sep 2021 Unsatisfactory performance: improvement plan important, but does not have to last forever

When it comes to dismissal of an employee due to unsatisfactory performance, the concept of an 'improvement plan' is important. An employer must give an employee sufficient opportunity to improve his or her performance. But it is also true that such an improvement plan has its limits and and therefore does not have to last forever. This was recently demonstrated in a case at the Court of Appeal in Den Bosch.

Facts

Let us first discuss the facts of the case. The employee has been working for the employer since 1 September 2007. A scale from A (excellent) to D (poor) is used to assess employees. The appraisal that the employee received on 23 December 2016 stated that the company to which she was posted was satisfied with her performance, but that her level was not that of an engineer-C. The employee must take concrete steps to reach this level.

However, things were not going in the right direction, as on 2 December 2017, the employee achieved a C/D score. As of 2017, a coach was employed to improve her functioning, particularly her uncertainty and communication skills. Employee's performance over 2018 was rated with a C-score.

On 1 July 2019, a conversation took place between the employee and her supervisor. During that conversation, a number of action points were agreed upon for the next conversation. After this, two more conversations took place, but the agreed action points were not completed each time. According to the assessment form dated 3 December 2019, the employer assessed the employee's performance in 2019 with a C/D. The criticism/points of improvement were in the areas of problem-solving ability, a wait-and-see attitude and a negative way of communicating.

In view of this assessment, the employer started an improvement process and an improvement plan was drawn up. Various talks were held about the progress of the plan. According to the employer, the improvement plan concluded that, despite intensive supervision, coaching and a low workload, there had been insufficient or no improvement on most points. For this reason, the employer seeked to terminate the employment contract.

Attempts to reach an amicable settlement to terminate the employment contract proved fruitless. The employer therefore went to the subdistrict court and requested that the employment contract be dissolved. The subdistrict court agreed and granted the dissolution, while also ruling that the employee should receive €15,454.86 gross from the employer.

Appeal

The employee disagreed with the judgment of the subdistrict court and lodged an appeal. The Court of Appeal in Den Bosch ruled as follows. The Court of Appeal did not agree with the employee that she had wrongly been assessed with a C/D and that an improvement process had wrongly been initiated. The employer provided sufficient explanation of the aspects in respect of which the employee was evidently functioning inadequately and drew up the improvement plan in proper consultation with the employee.

In so far as the employee argued that the C/D appraisal was prompted by the limited bonus budget and the circumstance that employees with a C/D appraisal were not entitled to a bonus, the Court of Appeal did not agree with the employee this either. The employer has disputed this, stating reasons, and the employee has not provided any further explanation for her assertion. Furthermore, the Court of Appeal established that the essential shortcomings identified in the evaluation of the improvement plan, particularly with regard to the production and quality of the work, were not or insufficiently refuted by the employee. During the improvement plan, tools were given such as guidance and the drawing up of a checklist. These have not led to the desired improvement of the production and quality of the work.

It can be admitted to the employee that the improvement plan extended over a limited period of three months. However, in this case the Court of Appeal considers the duration sufficient. In view of the barely contested outcome of the improvement plan with regard to the production and quality of the work, the guidance she received and also the employee's own estimate that she would still need eighteen months to a few years to function at the required level for the stipulated work, the employer cannot be expected to embark on such a protracted improvement plan. Redeployment is not an option. For this reason, the court upheld the decision of the subdistrict court.

You can read the entire judgment here (in Dutch).

Final Remarks

In the event of alleged malfunctioning by an employee, a thorough improvement process is and remains indispensable. Such a trajectory must be carefully set up and monitored. This judgment shows that - depending on the circumstances - an improvement plan of three months may be sufficient. However, this remains a tailor-made job, so be sure to seek proper advice beforehand. Employers and employees who have questions on this subject are of course welcome to contact the employment lawyers at SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht

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