From an employment law perspective, a common question from the employer is: my employee is not performing well, can I dismiss him/her?
The answer to this question is 'yes', provided that the requirements for termination due to poor performance, as laid down by law, are met or the employee him or herself agrees to termination of the employment. In this blog, we will not address the latter in detail.
Dutch law is quite employee friendly and dismissal due to poor performance is subject to a number of legal requirements. Those legal requirements for a legally valid dismissal are established to protect employees from possible arbitrary decisions from the employer. A Dutch employer has room to make its own decisions, even if they are detrimental to employees. However, such decisions must be verifiable, in retrospect.
An employer may not unilaterally dismiss an employee due to underperformance without initiating a court procedure. The employer must request the court to dissolve the employment agreement and must be able to justify to the court how it has reached its decision to terminate the employment.
For a successful court procedure for dismissal due to underperformance, the employer must be able to demonstrate the following:
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