Performance reviews and performance management often form the factual basis of a dismissal file for underperformance. Yet in practice, dissolution requests based on the underperformance ground regularly fail, not because underperformance was never a genuine concern, but because the employer cannot show that the employee was warned in time and specifically, that the employee was given a serious and real opportunity to improve, and that redeployment was investigated. Recent case law, including two 2026 rulings by the Amsterdam Court of Appeal concerning IBM, shows how strictly courts test this.
The statutory basis: article 7:669 of the Dutch Civil Code
The starting point of Dutch dismissal law is that an employment contract can only be terminated or dissolved if there is a reasonable ground for doing so and redeployment of the employee within a reasonable period, with or without training, to another suitable position is not possible or not appropriate. This follows from article 7:669(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW). Redeployment is therefore not a side issue but an independent condition alongside the dismissal ground itself.
For underperformance, this ground, commonly referred to as the d-ground, is set out in article 7:669(3)(d) BW. The provision describes it as the employee’s unsuitability for performing the agreed work, other than as a result of illness or disability, provided that the employer notified the employee of this in good time and gave the employee sufficient opportunity to improve his performance, and that the unsuitability is not the result of the employer’s insufficient care for the employee’s training or working conditions.
These three requirements, timely notice, a genuine opportunity to improve, and the absence of a training or working-conditions failure on the employer’s part, are therefore already built into the statutory text of the d-ground itself.
The Dismissal Regulation (Ontslagregeling) then elaborates two other elements of the dismissal framework. Article 9 of the Dismissal Regulation concretises the redeployment obligation: when assessing whether a suitable position is available, vacancies that will arise within the reasonable period, temporarily filled positions, and positions within any group of companies must also be taken into account, and a position is considered suitable when it matches the employee’s education, experience and capabilities.
Article 10 of the Dismissal Regulation then determines what that reasonable period is: in principle equal to the statutory notice period, calculated from the day on which a decision is made on the dismissal or dissolution request. In addition, a separate training obligation applies under article 7:611a BW: the employer must enable the employee to undertake training that is necessary for his position. If underperformance is partly the result of a breach of that obligation, the d-ground cannot succeed for that reason alone.
What the court actually tests
Our employment law attorneys see that the court does not assess whether conversations took place at some point, but whether the employee specifically and demonstrably knew where his performance fell short, what improvement was expected, within what period, with what support, and that failing to improve could have consequences for his employment. Vague remarks such as “you need to be more proactive” or “the collaboration could be better” do not hold up without concrete examples and follow-up agreements.
How strictly this is tested is illustrated by two 2026 judgments of the Amsterdam Court of Appeal concerning IBM. The court ruled that an improvement trajectory that is worded identically for multiple employees, in other words a generic improvement plan, is insufficient, because an improvement trajectory must be tailored to the specific shortcomings of the individual employee. Moreover, a large and professional employer such as IBM was expected to record interim evaluations in writing.
Tellingly, the court characterised these shortcomings as culpable, but not as seriously culpable: the absence of a fully substantiated d-ground does therefore not automatically lead to the more severe qualification required for a fair compensation award.
The District Court of Zeeland-West-Brabant clarified in 2026 what an improvement plan must contain at a minimum: using concrete examples, the employer must clearly explain exactly where the employee’s performance falls short, what is expected of the employee in his role, and in what way or with what support the desired improvement can be achieved.
The District Court of Noord-Nederland adds that the employee must know in advance that, if improvement fails to materialise within a specified period, termination of the employment contract may follow. At the same time, the form this takes is not prescribed by law: case law emphasises that how an employer facilitates and records improvement depends on the circumstances of the case.
A file without any written record is therefore not automatically hopeless, but the burden of proof for a reasonable dismissal ground rests with the employer, and without reports, emails or evaluations that burden is often considerably harder to meet.
The role of performance reviews
A performance review is, at its core, a two-way conversation between manager and employee about progress and collaboration, without a formal final verdict. This distinguishes it from an appraisal interview, which is more one-sided and results in a score or judgment with consequences for, for example, salary or promotion. Both are relevant to a dismissal file: performance reviews are usually where shortcomings are first identified, while appraisal interviews confirm and formalise that criticism.
A recent example of how this can go wrong is the June 2026 ruling by the District Court of Rotterdam concerning the dismissal of the director of the Nederlands Fotomuseum. In the years preceding the dismissal, only one performance review had taken place, and it was positive; the supervisory board’s annual reports were similarly complimentary during that same period.
When the dismissal was suddenly based on inadequate performance, the court could not reconcile that with a file showing the opposite. The case illustrates a recurring theme in case law: earlier positive appraisals that are inconsistent with later, sudden criticism undermine the credibility of the dismissal file.
Redeployment and training as independent conditions
A well-built dismissal file for underperformance will not save a dismissal if the redeployment condition of article 7:669(1) BW has not been met. The Dutch Supreme Court has confirmed that the court must always examine this point independently, even where underperformance itself has already been established. In practice, this often goes wrong because an employer merely forwards a list of vacancies, without an active investigation, conducted together with the employee, into suitable positions, including within any group of companies, and without assessing whether training could make a position suitable after all.
The training obligation under article 7:611a BW plays a dual role here. It is relevant to the question of whether the underperformance itself is attributable to the employer, since the d-ground does not succeed if the unsuitability results from insufficient care for training.
And it is relevant to redeployment, because a position that is not immediately suitable may sometimes become suitable with training. Training that is necessary for performing the current role must moreover be offered by the employer free of charge; only for training aimed exclusively at continuing the employment contract in a different role does an explicit reasonableness test apply under the law.
Serious culpability: a separate and higher threshold
It is a common misconception that a rejected dismissal request on the d-ground automatically results in a fair compensation award for the employee. That is not the case. Fair compensation upon dissolution is only possible if the dissolution itself is the result of seriously culpable acts or omissions by the employer, as set out in article 7:671b BW, and that threshold is considerably higher than the mere absence of a fully substantiated dismissal ground.
As the IBM cases show, an employer may therefore have acted culpably by running a deficient improvement trajectory without this already being seriously culpable. That qualification is reserved in case law mainly for situations in which the employer deliberately steered towards dismissal, never gave the employee a genuine opportunity to improve, or used the trajectory as a cover for a departure that had effectively already been decided.
Common mistakes
Anyone building a dismissal file for underperformance should note that most of these files fail for a limited number of recurring reasons: criticism that is too general for the employee to act on, an improvement plan that is generic rather than tailored to the individual employee, the absence of a clear warning that failing to improve could have consequences, earlier appraisals that contradict the later criticism, and a redeployment investigation limited to forwarding vacancies without active guidance or research within the group.
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 and collaboration, without a formal final verdict. An appraisal interview is more one-sided and results in a score or judgment about performance, with consequences for, for example, salary or promotion. Both are relevant to a dismissal file for underperformance, but they play a different role in building the evidence.
How many performance reviews are needed for a valid dismissal for underperformance?
For a complete dismissal file for underperformance, there is no statutory minimum number of conversations required. The court looks at whether the employee had a serious and genuine opportunity to improve, not at a fixed number of conversations. One well-designed and tailored trajectory can be sufficient, while several vague or generic conversations can still be insufficient.
Can an employer dismiss an employee without an improvement trajectory?
This is difficult, though not entirely ruled out, if it can be shown that the employee was otherwise notified in good time and specifically of his shortcomings and given a genuine opportunity to improve. In practice, an improvement trajectory is by far the most common and safest way to meet the requirements of article 7:669(3)(d) BW, and its absence is usually precisely where the evidence of that improvement opportunity is lacking.
Must performance reviews be recorded in writing?
For a dismissal file for underperformance, the law does not prescribe a fixed form: how an employer facilitates and records improvement depends on the circumstances of the case. In practice, however, the burden of proof for a reasonable dismissal ground rests with the employer, and without meeting reports, emails or evaluations that burden is generally considerably harder to meet. Written records are therefore not a legal requirement, but they are advisable.
Does it matter if earlier appraisals were positive?
Yes, and this can seriously weaken a dismissal file. If earlier performance reviews or annual reports were positive and dismissal for underperformance follows shortly afterwards, the court will question why that criticism was not raised earlier. Consistency between earlier appraisals and the later dismissal ground therefore matters.
Does a rejected dismissal for underperformance automatically lead to fair compensation?
No. A separate and higher test applies: the dissolution must be the result of seriously culpable acts or omissions by the employer. A deficient or overly generic improvement trajectory can be culpable without meeting that heavier qualification, as recent case law on generic improvement plans shows.
Are you considering a dismissal process for underperformance, or would you like to set up your performance management so that a file will hold up later on? Feel free to contact our employment law attorneys at Law & More for a no-obligation conversation.
