Performance reviews and the accompanying reports are a regular feature of employment relationships. They serve as a reference point for discussing and recording the performance and development of the employee. But what if an employee uses such a report as evidence for a pay rise? The Court of Appeal in ‘s-Hertogenbosch recently ruled on the question of whether a performance review report has special probative value: a ruling that is relevant for both employers and employees.

What was going on?

An employee claimed that he was entitled to a higher salary, referring to the report of a performance review. According to him, the report should be given ‘special probative value’ because it was a document within the meaning of the law of evidence.

However, the Court ruled otherwise. According to established case law, the Court ruled that a deed only exists if there is a signed document that aims to record a statement by one party for the purpose of providing evidence.

According to the Court, a performance review does not meet this requirement. The purpose of such a report is to record an employee's performance, planning and development, but it is not intended to formalise binding agreements on terms of employment, such as salary.

Significance for practice, tips for employers and employees

It follows from this ruling that a performance review and the report drawn up on the basis thereof cannot automatically serve as evidence for, for example, a salary increase, unless explicit and unambiguous agreements have been laid down that do qualify as a deed.

Employers would therefore be well advised to record agreements on terms and conditions of employment, such as salary increases, separately and explicitly, preferably in a written document that meets the requirements of a deed. If it is not the intention that employees should derive rights from matters discussed in performance reviews concerning terms of employment, it is wise to clearly state in the report that the discussion was only exploratory and that no definitive agreements were made.

Employees would be well advised to request that their employer explicitly and separately record any agreements made regarding financial matters such as wage increases in writing, for example in an addendum to the employment contract.

Read the full judgment here.

Conclusion

Do you have questions about the correct drafting of performance reports or the recording of employment conditions? Please feel free to contact one of the specialised employment lawyers at SPEE advocaten & mediation. We are happy to assist you.