Remote work has changed how employers monitor performance. Dutch employment law still holds employers to strict standards when dismissing someone for underperformance.
In the Netherlands, underperformance must be clearly documented and communicated to the employee in writing with specific examples. The employee must be given a fair opportunity to improve before a court will approve dismissal.
Simply claiming an employee is not meeting expectations is not enough to end their contract legally.
The shift to remote and hybrid work has made performance assessment more complex. Employers must prove that poor performance is real, not caused by illness or lack of proper support, and that all legal steps were followed.
Without proper documentation and a structured improvement process, a dismissal claim will likely fail in court.
Legal Definition of Underperformance in the Netherlands
Under Dutch law, underperformance functions as a distinct legal ground for dismissal with specific requirements that differ from other termination reasons. The law requires concrete evidence and proper documentation to prove an employee fails to meet job expectations.
What Constitutes Underperformance
Underperformance falls under Section 7:669(3)(d) of the Dutch Civil Code as a recognised ground for dismissal. It occurs when you consistently fail to meet the reasonable expectations outlined in your job description or employment agreement.
Dutch employment law defines poor performance through several measurable criteria. You might deliver work that falls below acceptable quality standards.
You could struggle to complete tasks within expected timeframes. Difficulty cooperating with colleagues or clients also qualifies.
Your employer must prove underperformance against the specific requirements of your corporate position. Vague complaints about your attitude or general dissatisfaction don’t meet the legal threshold.
The assessment must reference concrete examples tied to your actual job duties.
Distinction Between Underperformance and Misconduct
Poor performance and serious misconduct represent entirely separate grounds for dismissal under Dutch law. Understanding this distinction protects your rights during termination proceedings.
Underperformance means you’re unable to do the work properly despite genuine effort. Serious misconduct involves culpable acts where you deliberately violate rules or behave inappropriately.
If you miss deadlines because you lack certain skills, that’s underperformance. If you refuse to complete assigned work, that’s misconduct.
The legal process differs significantly. Dismissal for underperformance requires documented improvement plans and multiple warnings.
Misconduct can lead to immediate dismissal in severe cases. Your employer cannot switch between these grounds arbitrarily once proceedings begin.
Common Pitfalls in Underperformance Cases
Employers frequently fail to build adequate documentation before claiming underperformance. Dutch law requires timely warnings about performance issues, not complaints raised only during dismissal talks.
Many underperformance cases collapse because employers cannot prove they communicated problems clearly. You must receive specific feedback about which aspects of your work fall short.
Generic statements about “not fitting in” or “lacking commitment” don’t satisfy legal requirements.
Another common mistake involves inadequate improvement opportunities. Your employer must demonstrate that performance issues don’t result from illness or disability.
They must also prove you received proper support and training before dismissal proceedings began.
The Legal Process for Dismissal Due to Underperformance
Dutch law requires employers to follow strict dismissal procedures before terminating an employee for underperformance. The process emphasises documentation, structured improvement opportunities, and fair assessment timelines to protect workers from arbitrary termination.
Step-by-Step Dismissal Procedures
Your employer cannot simply terminate your contract without following a structured process. The dismissal procedure begins with identifying specific performance concerns and communicating them to you clearly.
Your employer must first provide verbal and written feedback about your underperformance. This initial stage sets out exactly where you’re falling short and what needs to change.
The feedback should reference concrete examples rather than vague criticisms.
If performance issues persist, your employer must investigate whether external factors contribute to the problem. They need to assess if inadequate training, poor working conditions, or health issues affect your work.
Dutch employment law requires employers to offer support measures before proceeding with termination.
The employer must also check whether alternative positions exist within the organisation. If suitable vacancies match your skills and qualifications, the employer is legally obliged to consider transferring you.
This requirement applies even if additional training would be necessary.
Performance Improvement Plan (PIP) Requirements
A Performance Improvement Plan forms the core of any legal dismissal procedure for underperformance. Your employer must create a structured PIP that clearly outlines specific, measurable goals you need to achieve.
The PIP should include:
- Specific goals: Concrete targets with practical examples of expected improvements
- Reasonable timeline: Several months to demonstrate progress (not just weeks)
- Support measures: Training sessions, mentoring, or additional resources
- Evaluation schedule: Regular check-ins to review your progress
- Clear consequences: What happens if targets aren’t met
Your employer must document all PIP meetings and progress reviews. This documentation becomes crucial if the case proceeds to the subdistrict court.
The improvement process needs to give you a genuine opportunity to succeed, not just create a paper trail for dismissal.
Role of Documentation and Feedback
Proper documentation protects both you and your employer throughout the dismissal process. Your employer must maintain detailed records of all performance discussions, warnings, and improvement attempts.
Every piece of feedback you receive should be documented in writing. This includes informal conversations that later become relevant to the dismissal case.
Written records must specify dates, performance issues discussed, and agreed-upon action points.
You have the right to respond to any documented feedback. Your employer should record your perspective on performance concerns and any mitigating circumstances you raise.
This balanced documentation demonstrates fairness in the process.
Regular performance reviews during the PIP period must be scheduled and recorded. These reviews track your progress against set targets and identify areas where additional support might help.
Without consistent documentation, an employer cannot prove they followed proper procedures.
Timeline and Reasonable Opportunity to Improve
Dutch law doesn’t specify an exact timeline for the dismissal procedure, but courts expect employers to provide a reasonable opportunity for improvement. A PIP lasting several months is typically considered appropriate, though this varies based on the complexity of your role.
The timeline must allow you sufficient opportunity to demonstrate sustained improvement. A few weeks is generally too short to show meaningful change in performance patterns.
Your employer cannot rush the process to achieve a predetermined outcome.
After the PIP concludes, your employer conducts a final performance review. This assessment determines whether you’ve met the required standards.
If you haven’t improved sufficiently and no alternative positions exist, your employer can pursue termination through the subdistrict court or propose a settlement agreement.
The subdistrict court reviews whether your employer followed all proper procedures and provided adequate support. If satisfied, the court may approve the dismissal.
Many cases resolve through settlement agreements that include fair compensation, typically matching or exceeding the statutory transition payment of one-third of monthly salary per year of service.
Proving Underperformance in Court
Employers must meet strict legal standards to prove underperformance in Dutch labour law. The court requires clear evidence that the employee cannot perform their duties and that the employer followed proper procedures before seeking termination.
Employer’s Burden of Proof
Your employer carries the full responsibility to demonstrate that you are underperforming. Under Section 7:669 (3) (d) of the Dutch Civil Code, they must show that you consistently fail to meet the requirements of your role as outlined in your job description.
The employer needs to prove three key elements to the court. First, you cannot perform the work required of your position.
Second, your inability is not caused by illness or disability. Third, the employer warned you about the poor performance in time and gave you a genuine chance to improve.
The court will reject a dismissal request if the employer cannot provide sufficient evidence for each of these points.
Your employer must show that they acted as a reasonable employer would in similar circumstances.
Court Evaluation Criteria
The court examines multiple factors when evaluating whether underperformance justifies termination. These include the nature and level of your position, your education and work experience, and how long you have been employed.
Dutch labour law requires courts to consider:
- The specific duties listed in your job description
- The type and severity of your performance issues
- How long you struggled with performance after being informed
- Previous efforts to address the problems
- Your willingness to accept feedback and improve
- The size and nature of your employer’s business
The court also checks whether redeployment to another suitable role within the company is possible. If your employer can reasonably transfer you to different work, grounds for dismissal may not exist.
Evidential Standards and Documentation
Your employer must present detailed written documentation to the court. Performance reviews, written warnings, and records of improvement meetings form the core evidence in underperformance cases.
A Performance Improvement Plan (PIP) serves as critical proof that your employer gave you a real opportunity to improve. The PIP must include specific performance targets, clear timelines, and details about support offered to you.
Generic or vague improvement plans often fail to meet legal standards.
The court expects to see correspondence showing that you understood the performance issues and the consequences of not improving. Email records, meeting notes, and formal letters all strengthen your employer’s case.
Without proper documentation, the court typically denies dismissal requests based on underperformance.
Alternative Resolutions and Settlement Options
When dismissal disputes arise in the Netherlands, employers and employees can choose paths that avoid lengthy court proceedings. These alternatives often provide faster outcomes and allow both parties to negotiate terms that suit their specific circumstances, including financial compensation and the conditions under which employment ends.
Settlement Agreement and Mutual Consent
A settlement agreement (vaststellingsovereenkomst) offers a direct way to end your employment contract without court involvement. You and your employer record all terms in a written termination agreement that both parties sign.
This approach works when you both agree to part ways. You can negotiate various terms, including unused holiday pay, notice periods, and other outstanding matters.
Your employer does not need approval from the Employee Insurance Agency (UWV) or the sub-district court for this type of dismissal.
You have 14 days to reconsider after signing the agreement. During this period, you can withdraw your consent without giving any reason.
Your employer must clearly state this reconsideration period in the written agreement. If they fail to mention it, the period automatically extends to 21 days.
The settlement agreement differs from standard dismissal procedures. You maintain control over the negotiation process and can discuss terms that matter most to you.
Transition Payment and Severance Compensation
A settlement agreement does not automatically require your employer to pay transition compensation (transitievergoeding). However, you can negotiate severance payments as part of your agreement terms.
If you choose termination with consent instead of mutual dismissal, your employer must pay the statutory transition payment. This payment amount depends on your salary and length of service.
The transition payment applies even when you consent to the dismissal in writing.
Fair compensation often includes more than the basic transition payment. You can negotiate additional severance based on your circumstances, such as your age, time with the company, and future job prospects.
Many settlement agreements include compensation packages that exceed the minimum legal requirements.
Your negotiation position strengthens when you have evidence of procedural errors or weak underperformance claims from your employer.
Role of Trade Unions and the Works Council
Trade unions provide valuable support during settlement negotiations. They can review your agreement terms, explain your legal rights, and advise whether the compensation offered is reasonable.
Union representatives often negotiate directly with your employer on your behalf.
The works council plays a different role in dismissal procedures. They must receive notification when your employer plans significant reorganisations or multiple dismissals.
The council can request information about dismissal reasons and proposed solutions.
You can consult with union representatives even if you are not a member, though members typically receive more extensive assistance.
Legal advisers specialising in employment law offer another option for professional guidance during negotiations.
Employee Protections and Special Considerations
Employees facing dismissal after remote work in the Netherlands benefit from specific legal protections that require employers to consider health conditions, contractual status, alternative roles, and immigration consequences before terminating employment.
Dutch labour law mandates careful assessment of these factors, particularly when underperformance claims intersect with protected circumstances.
Disability, Long-Term Illness, and Reasonable Accommodation
Your employer cannot dismiss you for underperformance if your poor results stem from disability or long-term illness without first providing reasonable accommodation. Dutch law requires employers to demonstrate they have taken all feasible steps to help you perform your duties.
This includes adapting your remote workspace, adjusting targets, providing assistive technology, or modifying work schedules. If you develop a disability or fall ill during remote work, your employer must conduct a proper assessment with an occupational health physician.
The employer bears the burden of proving that accommodation is either impossible or creates an undue hardship on the business. Simply claiming that remote work makes accommodation difficult is insufficient.
Your employer must show concrete evidence of why adjustments cannot enable you to meet reasonable performance standards. If you have been absent due to illness for less than two years, dismissal for underperformance is generally prohibited unless the UWV grants specific permission.
The employer must prove your illness is unrelated to the performance issues or that no reasonable accommodation exists.
Probationary Period and Summary Dismissal
During your probationary period, which can last up to five months for indefinite contracts, your employer can dismiss you for underperformance without UWV permission or extensive documentation. However, the employer must still act in good faith and cannot discriminate.
Summary dismissal for underperformance during remote work is rare and requires proof of urgent cause, such as deliberate refusal to work or gross negligence. Poor performance metrics alone rarely justify immediate dismissal without notice.
Your employer must demonstrate that your conduct was so egregious that continuing employment even during a notice period is unreasonable. If you receive a summary dismissal, you can challenge it in court.
The employer must prove urgent cause existed at the moment of dismissal. Past underperformance that was previously addressed through warnings typically does not meet this standard.
Redeployment and Alternative Positions
Before dismissing you for underperformance in a remote role, your employer must investigate whether you can be redeployed to another suitable position within the organisation. This obligation applies even when you work remotely.
Your employer must consider:
- Positions at similar pay and responsibility levels
- Roles requiring minimal additional training
- Both remote and office-based vacancies
- Part-time positions if full-time work is problematic
The employer must actively search for alternatives and cannot simply claim none exist without documenting this effort. If a suitable vacancy exists and you are willing to accept it, dismissal for underperformance becomes significantly harder to justify legally.
International Employees and Residency Impact
If you are an international employee working remotely in the Netherlands, dismissal affects your residence permit. Your highly skilled migrant visa or other work-based permit depends on maintaining employment with your sponsoring employer.
Upon dismissal, you typically have three months to find new employment or you must leave the Netherlands. This creates additional pressure that Dutch courts may consider when evaluating whether dismissal was proportionate.
Your employer should inform you in writing about the immigration consequences of termination. If you hold EU citizenship, dismissal does not affect your right to remain in the Netherlands.
However, it may impact your ability to bring family members or maintain certain benefits tied to employment status.
Post-Dismissal Rights and Consequences
When your employer dismisses you in the Netherlands, you have specific legal protections regarding notice periods, financial support, and the right to challenge the decision. Understanding these rights helps you navigate the transition and ensure your employer meets their legal obligations.
Notice Period and Statutory Requirements
Your employer must provide proper notice before your dismissal takes effect. The statutory notice period depends on how long you have worked for the company.
If you have a permanent contract and have worked for less than five years, your employer must give one month’s notice. The notice period increases by one month for every five years of service, up to a maximum of four months.
You continue to receive your full salary during the notice period. Your employer cannot reduce your pay or benefits during this time.
If your employer dismisses you with immediate effect due to urgent cause (such as serious misconduct), they do not need to provide a notice period. However, they must prove the misconduct was severe enough to justify immediate dismissal.
Entitlement to Unemployment Benefits
You can apply for unemployment benefits through the Employee Insurance Agency (UWV) after your dismissal. The UWV provides financial support whilst you search for new employment.
You must register as unemployed within one week of your dismissal to avoid delays in receiving benefits. Your benefit amount depends on your previous salary and how long you worked.
You typically receive 75 per cent of your last earned daily wage for the first two months, then 70 per cent afterwards. The duration of benefits depends on your employment history, with a maximum of 24 months.
The UWV may reject your application if you were dismissed for urgent cause or if you resigned voluntarily. They will assess whether you bear responsibility for losing your job.
Appeals and Contesting Wrongful Dismissal
You have the right to challenge your dismissal if you believe it was wrongful. You must file your appeal with the subdistrict court within two months of the dismissal.
The court will examine whether your employer had valid grounds and followed proper procedures. Wrongful dismissal occurs when your employer lacks sufficient legal grounds or fails to follow required procedures.
If the court finds your dismissal was wrongful, you may receive compensation or reinstatement to your position. You should gather evidence to support your case, including performance reviews, employment contracts, and correspondence with your employer.
Legal representation can help you navigate the appeals process and strengthen your claim.
Frequently Asked Questions
Dutch law requires employers to follow strict procedures when dismissing remote workers for underperformance, including documented evidence and improvement opportunities. Remote employees have the same legal protections as on-site staff regarding dismissal procedures.
What constitutes sufficient grounds for dismissal due to underperformance in a remote work setting in the Netherlands?
Sufficient grounds require concrete evidence that you consistently fail to meet clearly defined job requirements. Your employer must show that performance issues are genuine and based on current job expectations.
The performance problems must be measurable and documented over time. Vague complaints or subjective opinions are not enough to justify dismissal under Dutch law.
Your employer must also prove that inadequate training, poor management or technical issues did not cause the underperformance. If working conditions or lack of support contributed to the problem, these factors weaken the grounds for dismissal.
How can an employer legally document and demonstrate underperformance in a remote work environment?
Your employer must maintain written records of all performance concerns and feedback sessions. This includes emails, meeting notes and documented examples of specific tasks where you fell short of expectations.
Regular performance reviews with clear metrics provide evidence of ongoing issues. For remote workers, employers often track project deadlines, quality of deliverables and communication responsiveness.
Your employer should document any support provided, such as additional training or resources. They must also record your progress during any improvement periods to show whether you responded to feedback.
What is the required process for providing formal performance feedback before considering dismissal?
Your employer must first address performance concerns through verbal and written feedback. This initial step should clearly explain what needs to improve and provide specific examples.
If issues continue, your employer should create a Performance Improvement Plan (PIP). The PIP must outline specific goals, a reasonable timeline for improvement, support available to you and consequences if targets are not met.
During the PIP period, your employer must regularly review your progress and provide documented feedback. If you still do not meet requirements, they may issue a formal written warning before proceeding with dismissal.
What are the rights of employees when facing potential dismissal for underperformance in remote roles?
You have the right to receive clear, documented feedback about performance concerns. Your employer must give you a fair opportunity to improve with adequate support and resources.
You can request a review of your working conditions if technical problems or lack of training affected your performance. If health issues or disabilities contribute to difficulties, your employer must provide reasonable accommodations.
Before dismissal proceeds, your employer must check whether alternative positions exist within the company that match your skills. If a settlement agreement is offered, you have the right to legal advice at your employer’s expense.
Are there any specific regulations concerning the dismissal of remote workers compared to on-site employees?
Dutch labour law applies equally to remote and on-site employees. No separate regulations exist specifically for remote workers regarding dismissal procedures.
Your employer must follow the same structured process regardless of your work location. This includes providing warnings, creating improvement plans and considering alternative positions.
The methods of documentation may differ slightly for remote work, but the legal requirements remain identical. Your rights and protections do not change based on where you work.
How does Dutch law protect remote employees from unjust dismissal based on performance issues?
Dutch law prohibits arbitrary dismissal and requires employers to prove genuine underperformance. Your employer cannot dismiss you without following proper procedures and providing evidence.
If your employer seeks dismissal through the subdistrict court, the court reviews whether proper procedures were followed. The court checks if you received adequate support, feedback, and opportunities to improve.
You can challenge a dismissal if your employer failed to follow required steps or did not provide sufficient evidence.
If you reach a settlement agreement, it should confirm that dismissal was employer-initiated and include appropriate compensation.
