An employer in the Netherlands can only dismiss an employee for underperformance if the dismissal file shows that the employee was warned in time and specifically, had a real opportunity to improve, and could not be redeployed. Performance reviews are usually the backbone of that file, but a file with only vague or positive reviews will normally not hold up before the subdistrict court (kantonrechter).
This article explains the legal test, what courts look for in performance reviews and improvement plans, and what employers and employees should check.
Table of contents
What is the legal basis for dismissal for underperformance?
Under Article 7:669(1) of the Dutch Civil Code (BW), an employer needs a reasonable ground for dismissal, and redeployment to another suitable position within a reasonable period must not be possible or appropriate. Underperformance is the d-ground in Article 7:669(3)(d) BW.
The d-ground covers unsuitability for the agreed work, other than through illness or disability. Three conditions are built into the text: the employer told the employee in good time, gave sufficient opportunity to improve, and the unsuitability is not caused by insufficient care for training or working conditions.
An employer cannot dismiss on the d-ground through UWV. It must ask the subdistrict court to dissolve the contract, unless the employee agrees to a settlement agreement (vaststellingsovereenkomst).
What does the court actually test?
The court checks whether the employee knew specifically where performance fell short, what was expected, within what period, with what support, and that failure could cost the job. Remarks such as “you need to be more proactive” do not meet that standard without concrete examples.
The burden of proof lies with the employer. The law does not prescribe a fixed form, but without written reports, emails or evaluations that burden is much harder to meet. An improvement plan worded identically for several employees is a known weak point, because it must address the individual’s shortcomings.
What should an improvement plan contain?
An improvement plan should name the specific shortcomings with examples, the expected level, the support offered and a realistic period. It should also state clearly that dismissal may follow if improvement does not come.
The period depends on the job and the shortcomings; a few weeks is rarely enough for a complex role, and courts often look at periods of several months. Schedule interim evaluations and record each one in writing, with the employee’s comments.
What role do performance reviews play?
A performance review is a two-way conversation about progress without a final verdict; an appraisal interview results in a rating with consequences for salary or promotion. Both count as evidence, and they must be consistent with the later dismissal ground.
Earlier positive appraisals undermine a sudden claim of underperformance. In the Rotterdam District Court ruling of 29 June 2026 on the dismissal of the director of the Nederlands Fotomuseum (ECLI:NL:RBROT:2026:7443), there had been only one performance review, in 2021, and it was positive. The court could not reconcile the dismissal with that file.
Why are redeployment and training separate conditions?
Even with a proven d-ground, the court dismisses the request if redeployment was not properly examined. Under Article 9 of the Dismissal Regulation (Ontslagregeling), the employer must also consider vacancies arising within the reasonable period and positions within the group.
Under Article 10 of the Dismissal Regulation, the reasonable period is in principle equal to the statutory notice period. Forwarding a list of vacancies is not enough; the employer must actively search with the employee and consider whether training could make a position suitable.
Under Article 7:611a BW, the employer must enable training needed for the job, at no cost to the employee for training it is required to offer. If the underperformance results from a lack of training, the d-ground fails for that reason alone.
Does a failed d-ground mean fair compensation for the employee?
Not automatically. If the court refuses dissolution, the contract simply continues. Fair compensation (billijke vergoeding) on dissolution under Article 7:671b BW requires seriously culpable conduct (ernstig verwijtbaar handelen) by the employer.
A weak improvement plan can be culpable without being seriously culpable. That qualification is mainly reserved for cases where the employer deliberately steered towards dismissal or used the plan as cover for a decision already made. Our article on fair compensation in dismissal cases explains how it is calculated.
What should you check as an employer?
- Whether the shortcomings are described with concrete, dated examples in reviews or emails.
- Whether the improvement plan is tailored to this employee, with goals, support and a realistic period.
- Whether the employee was told in writing that dismissal may follow if improvement fails.
- Whether earlier appraisals and bonuses contradict the criticism.
- Whether necessary training was offered under Article 7:611a BW.
- Whether you actively examined redeployment, including within the group, before filing with the subdistrict court.
What should you check as an employee?
- Whether the criticism is specific enough for you to know what to change.
- Whether the improvement plan gives you real support and enough time.
- Whether your comments on each review are recorded; add them in writing if not.
- Whether earlier positive reviews or pay rises contradict the criticism.
- Whether you asked for training and whether it was refused.
- Whether a settlement agreement offered to you includes at least the transition payment (transitievergoeding) and protects your unemployment benefit (WW).
What can we do for you with a dismissal file for underperformance?
Our dismissal lawyers and employment law attorneys act for employers and employees.
- We review the improvement plan before it starts, so it meets the test of Article 7:669(3)(d) BW.
- We assess an existing dismissal file and identify gaps in evidence, training and redeployment.
- We draft the dissolution request to the subdistrict court or the employee’s defence.
- We draft a written response to a review or improvement plan on the employee’s behalf.
- We negotiate a settlement agreement as an alternative to court proceedings.
Summary
- Dismissal for underperformance (d-ground) requires timely, specific warning, a real chance to improve and no training failure by the employer.
- Redeployment within the reasonable period, usually the notice period, is a separate condition.
- Generic improvement plans and earlier positive reviews weaken the file.
- A refused dissolution does not automatically mean fair compensation; that requires serious culpability.
Frequently asked questions
What is the difference between a performance review and an appraisal interview?
A performance review is a two-way conversation about progress without a final verdict. An appraisal interview results in a rating with consequences for salary or promotion. Both count as evidence in a dismissal file.
How many performance reviews are needed for dismissal for underperformance?
The law sets no minimum number. The court looks at whether the employee was warned specifically and had a real opportunity to improve under Article 7:669(3)(d) BW. One well-designed, tailored plan can be enough; several vague conversations may not be.
Can an employer dismiss for underperformance without an improvement plan?
It is difficult. The employer must show that the employee was warned in time and had a real opportunity to improve. In practice an improvement plan is the usual way to prove that, and its absence is often where the file fails.
Must performance reviews be recorded in writing?
The law does not require a fixed form, but the employer bears the burden of proof. Without written reports, emails or evaluations, proving a reasonable ground before the subdistrict court is much harder.
Does a rejected dismissal request lead to fair compensation?
No. If the court refuses to dissolve the contract, the employment continues. Fair compensation on dissolution requires seriously culpable conduct by the employer under Article 7:671b BW.
