An employer is entitled to be critical of an employee\u2019s performance. However, when such criticism arises, the employer also has a clear responsibility: the employee must be made aware of what is going wrong, be given the opportunity to respond to this and \u2013 where necessary \u2013 be supported through a serious improvement programme.<\/p>\n
Anyone who skips that step and moves swiftly from criticism to dismissal, suspension or replacement may ultimately be held responsible for the resulting breakdown in the employment relationship.<\/p>\n
This is evident from a recent ruling by the Limburg District Court dated 23 July 2026. The magistrate ruled that an educational foundation had acted in a seriously culpable manner towards a headteacher. The employee was awarded fair compensation of \u20ac60,000 gross, in addition to the transition payment and partial reimbursement of her legal costs.<\/p>\n
From initial criticism to a discussion about the future<\/strong><\/p>\n The employee joined the organisation on 1 January 2024 as headteacher of a primary school. This was her first appointment as a primary school headteacher. Prior to this, she had held other positions within the education sector.<\/p>\n Around a year after she started work, criticism arose regarding her performance. During a meeting on 25 February 2025, she was told, amongst other things, that she needed to consider her future.<\/p>\n The subdistrict court judge considered this to be a remarkably harsh approach for an initial performance review. The same applied to a follow-up meeting on 17 March 2025, during which the employee was asked, amongst other things, whether she possessed the professional qualities required of a headteacher.<\/p>\n According to the subdistrict court judge, an employer is, of course, entitled to express criticism. However, precisely because the employee was working as a headteacher for the first time, the judge felt that the employer\u2019s approach lacked the necessary guidance and support.<\/p>\n Bringing a solicitor does not undermine trust<\/strong><\/p>\n The employee no longer wished to attend the next meeting alone and engaged a solicitor. When her solicitor indicated that they wished to be present at the meeting, the employer cancelled it.<\/p>\n In doing so, the employer stated that the solicitor\u2019s involvement had changed the nature of the discussions and affected the basis of trust.<\/p>\n The subdistrict court judge was critical of this.<\/p>\n The fact that an employee seeks legal assistance during a labour dispute does not mean that she can be blamed for doing so. The employment tribunal judge did not, in itself, consider it problematic that she might feel supported by the presence of a solicitor and be in a stronger position during the meeting.<\/p>\n The employer\u2019s reaction even led the judge to question what the employer had actually hoped to achieve with the planned meeting.<\/p>\n No serious performance improvement plan<\/strong><\/p>\n A key aspect of the ruling concerns the absence of a performance improvement plan.<\/p>\n Where an employer considers that an employee is not performing adequately, it is the employer\u2019s responsibility to give the employee a genuine opportunity to improve their performance.<\/p>\n This did not happen in this case.<\/p>\n The employer argued that the improvement programme had not got off the ground due to the employee\u2019s actions. The subdistrict court judge did not agree with this. Even if an employee finds it difficult to respond to criticism, this does not mean that the employer can shirk its responsibility. On the contrary, the employer may be expected to attempt to break the deadlock, possibly with the help of a coach or other expert.<\/p>\n The employee had received some coaching at the start of her employment, but according to the employment tribunal judge, general coaching at the start of a new role is fundamentally different from targeted guidance in response to specific points of criticism.<\/p>\n The judge put it bluntly: the employer threw in the towel very quickly and already seemed to have \u2018had enough\u2019 of the employee.<\/p>\n This impression was reinforced by the fact that the employer\u2019s solicitor had already requested discussions regarding the termination of the employment contract on 9 April 2025.<\/p>\n Suspension and replacement<\/strong><\/p>\n The situation then escalated further.<\/p>\n In May 2025, the employee was suspended as a disciplinary measure. She was denied access to the school, lost access to her work email and intranet, and was removed from a group chat and mailing list. The suspension was later extended.<\/p>\n According to the subdistrict court, no new facts had come to light that made it impossible to allow the employee to remain in her post. The court therefore failed to see the necessity for the suspension.<\/p>\n The Appeals Board had also previously ruled that both the suspension and its extension were insufficiently substantiated.<\/p>\n However, the employer did not subsequently change course in any significant way.<\/p>\n In addition, it was communicated internally that the employee was to be replaced as director. In July 2025, it was even reported that a recruitment process for a new director would begin in the autumn. According to the employer, that report was based on a mistake, but the subdistrict court judge did not believe that its content did not reflect the employer\u2019s actual view.<\/p>\n Employer fully responsible for the breakdown<\/strong><\/p>\n The subdistrict court judge ultimately concluded that the employment relationship had by then become seriously and permanently disrupted.<\/p>\n The judge\u2019s wording on this point is remarkably clear: according to the subdistrict court judge, the employer was fully responsible for that breakdown.<\/p>\n It was not a single incident that proved decisive. It concerned the entire course of events: the manner in which the criticism was expressed, the lack of support, the failure to initiate a proper improvement process, the rapid push towards termination, the suspensions, the exclusion of the employee and the communication regarding her replacement.<\/p>\n The employment contract was therefore terminated at the employee\u2019s request with effect from 1 September 2026.<\/p>\n \u20ac60,000 in fair compensation<\/strong><\/p>\n The employee had sought fair compensation of \u20ac150,000 gross. The subdistrict court awarded \u20ac60,000 gross.<\/p>\n In reaching this decision, the court considered, amongst other things, how long the employment relationship would likely have continued had the employer acted with due care.<\/p>\n The judge did not simply assume that the employee would have remained in post as a headteacher until her retirement. After all, the employer had criticised her performance and, according to the subdistrict court judge, it was uncertain whether a proper performance improvement programme would ultimately have been successful.<\/p>\n The judge estimated that a proper improvement programme, possibly followed by termination proceedings, would have resulted in the employment contract continuing for approximately twelve months longer.<\/p>\n Furthermore, the subdistrict court judge considered it a significant factor that the employer\u2019s seriously culpable conduct had also been \u201cstress-inducing\u201d. The company doctor had repeatedly stated that the employer\u2019s attitude had substantially contributed to the onset and continuation of the incapacity for work.<\/p>\n At the same time, the subdistrict court took into account that the employee would be able to earn an income again once she had recovered and that she had only been in employment for a relatively short period.<\/p>\n Reimbursement of legal fees as well<\/strong><\/p>\n A notable aspect of this ruling concerns the legal fees.<\/p>\n The employee had by then incurred over \u20ac40,000 in legal costs. She sought reimbursement of these in addition to the standard legal costs.<\/p>\n The subdistrict court judge considered that a breach of the duty of care as an employer may, under certain circumstances, constitute grounds for reimbursement of actual legal costs. Due to the employer\u2019s seriously culpable conduct, the employee had been compelled to seek legal assistance.<\/p>\n However, this does not mean that all costs incurred are automatically reimbursed.<\/p>\n The judge did find, however, that the employee had failed to distinguish sufficiently between out-of-court work and costs relating to the proceedings. Furthermore, two solicitors had been involved and no fewer than 117 exhibits had been submitted. The judge aptly remarked that the concept of \u2018lean and mean\u2019 did not apply to this manner of conducting proceedings.<\/p>\n Ultimately, \u20ac15,000 (excluding VAT) was awarded in legal costs, in addition to \u20ac2,051 in standard litigation costs.<\/p>\n