Dismissal for underperformance: what must the employer prove?

An employer in the Netherlands can only dismiss you for underperformance if it has told you in time and in writing what is wrong, and has given you a real chance to improve, usually through an improvement plan of a few months. If your poor performance is caused by illness, or by a lack of training or support from the employer, the subdistrict court (kantonrechter) will not dissolve the contract on this ground.

These rules apply in the same way whether you work in the office, from home or in a hybrid set-up. Dutch employment law does not have separate dismissal rules for remote workers; remote work only changes how performance is measured and documented.

What counts as underperformance under Dutch law?

Underperformance (disfunctioneren) is the d-ground in Article 7:669(3)(d) of the Dutch Civil Code (BW): the employee is unsuitable for the job for reasons other than illness. It is one of the reasonable grounds for dismissal and differs from other termination reasons such as redundancy or culpable conduct.

The employer must measure your work against the actual requirements of your position, as set out in your job description or employment agreement. Concrete shortcomings count: work below the agreed quality, missed deadlines, or failing cooperation with colleagues or clients. Vague complaints about “attitude” or “not fitting in” do not meet the statutory test.

How does underperformance differ from misconduct?

Underperformance means you cannot do the work properly despite genuine effort; misconduct means you will not. Culpable acts or omissions fall under a different ground, the e-ground in Article 7:669(3)(e) BW, and serious misconduct can justify summary dismissal under Article 7:678 BW.

If you miss deadlines because you lack certain skills, that is underperformance. If you refuse to do assigned work, that is misconduct. The distinction matters, because only the d-ground requires an improvement process before dismissal.

What must the employer prove to the court?

Under Article 7:669(3)(d) BW the employer must show four things. If one is missing, the court rejects the request.

• You are unsuitable for your job, and this is not caused by illness or disability.
• The employer informed you of the shortcomings in time, before the dismissal was on the table.
• You were given sufficient opportunity to improve.
• The unsuitability is not due to insufficient care by the employer for your training or working conditions.

In addition, under Article 7:669(1) BW the employer must show that redeployment (herplaatsing) to another suitable position within a reasonable period, if necessary with training, is not possible or not reasonable. For underperformance, notice can only be given with your written consent; otherwise the employer must ask the subdistrict court to dissolve the contract. The Dutch labour law system gives the UWV no role here: it only handles redundancy and long-term illness cases.

How do courts assess the file?

The court looks at the nature and level of the position, your education and experience, the length of your employment and the size of the employer’s business. A senior manager with twenty years of service gets more time and support than a new junior employee.

Courts also check how long you had to improve after being informed, what the employer actually did to help, and how you responded to feedback. A file built only in the weeks before the dismissal request rarely survives this test.

What is the cumulation ground?

Since 1 January 2020 Article 7:669(3)(i) BW allows the court to dissolve a contract on a combination of grounds that are each incomplete on their own, for example underperformance together with a damaged working relationship. The employer must still substantiate every element it relies on. If the court dissolves on this basis, it may award an extra payment of up to half the transition payment on top of the ordinary entitlement.

How does a proper improvement process work?

The employer first names the shortcomings in writing, with concrete examples, and then offers a performance improvement plan (PIP, verbetertraject). The law sets no fixed length, but courts usually expect a plan of two to six months, depending on the job.

A plan that holds up in court contains:

• specific, measurable goals tied to your actual duties;
• a realistic period, usually months rather than weeks;
• support, such as training, coaching or a mentor;
• scheduled progress meetings, with written reports;
• a clear statement of what happens if the goals are not met.

Every meeting should be recorded with the date, the points discussed and the agreed actions. You may respond to each report, and it is wise to do so in writing if you disagree. The plan must give you a genuine chance to succeed; a dismissal procedure built on a plan that was set up to fail usually fails itself.

What changes when you work remotely?

The legal test is the same, but the evidence is different. Employers working with remote staff should rely on objective data such as missed deadlines, the quality of deliverables and response times, rather than impressions of availability.

Remote work also raises the question of whether the employer provided proper equipment, access to systems and supervision. Under Article 7:669(3)(d) BW, underperformance caused by insufficient care for working conditions does not count against you. Monitoring software is subject to the GDPR and, in companies with 50 or more employees, to the consent right of the works council under Article 27(1)(l) of the Works Councils Act (WOR).

What if illness or disability plays a role?

The d-ground does not apply if your performance problems are caused by illness or disability. The employer must then first look at adjustments, guided by the occupational health physician (bedrijfsarts).

While you are unfit for work, Article 7:670 BW prohibits notice of termination during the first two years of illness. The court may still dissolve the contract, but under Article 7:671b BW only if the request is unconnected with the illness. If you report sick during a PIP, the employer will therefore have to show that the shortcomings it relies on have nothing to do with your illness.

Can you be dismissed for underperformance during the probationary period?

Yes. During a valid probationary period either party can end the contract with immediate effect, without UWV permission or a court, although the employer must give the reason in writing if you ask and may not discriminate.

Article 7:652 BW caps the probationary period at two months for an open-ended contract or a fixed-term contract of two years or more, and at one month for a fixed-term contract of more than six months but less than two years. A contract of six months or less cannot have one. A longer clause is void, and a dismissal based on it is an ordinary dismissal that must meet all the usual requirements.

Summary dismissal (ontslag op staande voet) is almost never possible for underperformance alone. Article 7:678 BW requires an urgent cause, such as a deliberate refusal to work, and poor results despite genuine effort are not that. If you are dismissed with immediate effect, you can ask the subdistrict court to annul the dismissal within two months.

What are the alternatives to court proceedings?

Most underperformance cases end with a settlement agreement (vaststellingsovereenkomst). Both parties sign, and neither the UWV nor the court is involved.

Under Article 7:670b BW you may withdraw your consent within 14 days of signing, without giving a reason. If the agreement does not mention this right, the period is 21 days. For your unemployment benefit (WW), the agreement should record that the termination was initiated by the employer and that there is no urgent cause.

What about the transition payment?

If the employer ends the contract by notice with your consent or through the court, the statutory transition payment (transitievergoeding) under Article 7:673 BW is owed: one third of a monthly salary per year of service, calculated pro rata from day one. In 2026 it is capped at EUR 102,000, or one annual salary if that is higher.

In a settlement agreement there is no statutory entitlement; the amount is negotiated. In practice the transition payment is the floor, because it is what the employer would owe in court. A weak improvement file strengthens your negotiating position.

What happens after the dismissal?

If the court dissolves the contract, it takes the notice period into account, but at least one month must remain. Under Article 7:672 BW the employer’s notice period is one month for less than five years of service, rising by one month per five years to a maximum of four months; see our page on the statutory notice period.

You can apply to the UWV for unemployment benefit (WW-uitkering), preferably within one week after your first day without work. The benefit is 75% of your daily wage for the first two months and 70% after that, up to the maximum daily wage, for a period of at most 24 months depending on your work history. The UWV can refuse or reduce it if you are culpably unemployed, for example after a summary dismissal.

If your employer gave notice without your consent and without permission, you can ask the subdistrict court to annul the termination or award fair compensation, within two months after the contract ended. Against a dissolution order you can appeal to the court of appeal within three months.

What if you hold a work-based residence permit?

If you are a highly skilled migrant (kennismigrant), the employer as recognised sponsor must report the end of your employment to the IND within four weeks. You then have a search period of three months to find a new employer that is a recognised sponsor. EU citizens keep their right of residence. See our guide on employment law for expats.

What should you check as an employee?

Your position depends largely on the paper trail. Check these points as soon as performance concerns are raised:

• Did you receive the criticism in writing, with concrete examples tied to your job description?
• Is there an improvement plan with measurable goals and a realistic period of several months?
• Did you get the training, equipment and supervision you needed, also when working from home?
• Have you responded in writing to reports you disagree with?
• Could illness or a medical issue explain the problems, and has the occupational health physician seen you?
• Has the employer looked at other suitable positions?

What should you check as an employer?

Under Article 7:669 BW the burden of proof is entirely yours. Before you file a dissolution request, check:

• The first written warning predates the dismissal plan, with dated examples.
• The PIP has measurable goals, support and a period that suits the position.
• Every progress meeting is recorded and shared with the employee.
• Remote-work issues such as equipment, access and supervision have been ruled out.
• Illness has been ruled out as the cause, with input from the occupational health physician.
• Your redeployment search is documented, including vacancies that require training.

What can we do for you with dismissal for underperformance?

Our dismissal lawyers act for employees and employers in performance-related dismissals.

• We review the performance file and improvement plan against the requirements of Article 7:669(3)(d) BW.
• We draft your written response to a warning or progress report.
• We review the settlement agreement and negotiate the severance and the WW-safe wording.
• For employers, we set up a PIP and documentation that will hold up in court.
• We draft or defend the dissolution request before the subdistrict court.

Summary

• Underperformance is a ground for dismissal under Article 7:669(3)(d) BW, but only after timely warning and a real chance to improve.
• Illness, lack of training or poor working conditions as the cause rule out this ground.
• Remote work changes the evidence, not the legal test.
• Without your consent, the employer needs the subdistrict court; the UWV plays no role.
• In a settlement agreement you have 14 days to reconsider, and the transition payment is the usual floor for severance.

Frequently asked questions