Toxic employees can severely damage your organisation. Their influence often extends far beyond their own poor performance; persistent negative behaviour, undermining conduct, and a poisoned work atmosphere lead to decreased productivity across the entire team, increased absenteeism, and the departure of your most valuable talent.
However, in the Netherlands, simply firing someone because they are “difficult” or “damaging morale” is not straightforward. Dutch employment law offers employees robust protection, and judges impose strict requirements on legal justification and documentation. A vague feeling that “it’s just not working out” will not hold up in court.
This comprehensive guide covers the complete legal framework for dismissing a toxic employee in the Netherlands, essential documentation requirements, and common pitfalls. By following these steps, you can navigate this complex process successfully and restore health to your organisation.
What Constitutes a Toxic Employee?
It is crucial to distinguish between an employee who is simply underperforming and one who is truly toxic. A toxic employee is a worker who systematically undermines the work environment, collaboration, and performance through persistent negative behaviour. This goes beyond occasional misconduct—it is a pattern that causes lasting damage.
To make this concrete, consider the difference between “The Underperformer” and “The Toxic Employee”:
- The Underperformer: Misses sales targets or struggles with software, but is willing to learn and generally polite.
- The Toxic Employee: Misses sales targets, blames the “incompetent marketing team,” gossips about the manager’s personal life during lunch, and rolls their eyes when colleagues offer help.
Characteristics of toxic behaviour include:
- Constant gossiping: Spreading rumours about colleagues and management to sow discord.
- Active sabotage: Withholding necessary information or obstructing projects.
- Systematic undermining: Publicly questioning authority and decisions in a non-constructive manner.
- Refusal to cooperate: A persistent “that’s not my job” attitude or refusal to participate in teamwork.
- Intimidation and bullying: Overt or subtle aggression, exclusion, or boundary-crossing behaviour.
- Creating conflict: Thriving on chaos and maintaining a negative atmosphere.
It is crucial to objectively determine when behaviour crosses the line from merely “difficult” to genuinely harmful.
Legal Framework: Grounds for Dismissal Due to Toxic Behaviour
Dismissing an employee for toxic behaviour is governed by Article 7:669 of the Dutch Civil Code (Burgerlijk Wetboek – BW). This article stipulates that an employment contract can only be terminated if there is a “reasonable ground” and redeployment within a reasonable timeframe is not possible or not reasonable.
For toxic behaviour, two dismissal grounds are most relevant: the ‘e-ground’ and the ‘g-ground’.
1. Article 7:669(3)(e) BW: Culpable Acts or Omissions
This ground applies when the employee is guilty of culpable acts or omissions. This is not about inability (competence), but about unwillingness or misconduct.
Examples:
- A serious breach of duty, such as sharing confidential information.
- Serious conduct contrary to good employment practices, such as aggression.
- Deliberate violation of reasonable instructions.
Requirements:
The behaviour must be attributable to the employee (culpability). It must be serious enough that the employer cannot reasonably be expected to continue the contract. Furthermore, less severe measures—such as official warnings or a suspension—must have been tried and proven insufficient.
2. Article 7:669(3)(g) BW: Disrupted Employment Relationship
This ground applies when the employment relationship is so severely disrupted that the employer cannot reasonably be expected to continue the employment contract. This is often the most appropriate ground for “toxic” cases where specific culpable acts might be hard to pin down, but the total situation is unworkable.
Requirements:
- The disruption must be serious and lasting.
- Restoration of the employment relationship (e.g., through mediation) must be impossible.
- The employer must demonstrate that reasonable efforts were made to improve the situation.
Summary Dismissal (Articles 7:677-678 BW)
In exceptional, extreme cases, summary dismissal (ontslag op staande voet) may be warranted. This ends the contract immediately, without notice and without severance pay.
Examples:
- Physical aggression or credible threats.
- Gross insults or intimidation.
- Serious fraud or theft.
Note: Summary dismissal requires an “urgent cause” and must be executed immediately (within days of discovery). This is a high legal threshold that courts strictly scrutinise. If you fail to prove the urgent cause, the dismissal is void, and you may face massive wage claims.
Documentation: The Foundation of Every Successful Dismissal
Dutch case law consistently emphasises one rule: without proper documentation, there is no dismissal. The employer bears the complete burden of proof.
Many employers fail here because they rely on generalities. A court will not accept a claim like: “He is always negative.” You must prove it.
What Should Your Documentation File Contain?
A professional documentation file must include, at minimum:
1. Concrete factual description of incidents
Avoid adjectives; use facts.
- Bad: “John was rude in the meeting.”
- Good: “On 12 March at 14:00, during the strategy meeting, John interrupted the presentation, slammed his notebook on the table, and stated that the project lead was ‘completely incompetent’.”
2. Written meeting reports
Every conversation about behaviour must be logged. Include:
- Reports of all performance and appraisal discussions.
- Minutes of warning conversations.
- Crucially: The employee’s responses to accusations (the principle of hoor en wederhoor—the right to be heard).
- Date when reports were provided to the employee.
3. Warnings and improvement plans
- Written warnings with concrete improvement points.
- Agreements on improvement plans with measurable objectives.
- Evaluation moments and progress reports.
- Evidence that the employee was given a fair chance to improve.
4. Third-party statements
- Detailed written statements from colleagues (can be anonymised in early stages, but eventually usually need names).
- Complaints from clients.
- Emails or Slack/Teams messages illustrating the behaviour.
5. Evidence of redeployment attempts
- An overview of why the employee cannot be moved to a different department (e.g., “The toxic behaviour is a personality trait that would negatively impact any team”).
Case Law: What Goes Wrong?
ECLI:NL:RBZWB:2025:8493 – Insufficient concrete substantiation
The subdistrict court rejected a dissolution request because the employer could not concretely explain what exactly had occurred. They had “feelings” and “general complaints,” but no dates, times, or specific quotes.
The lesson: Vague descriptions and a lack of written warnings are fatal to your case.
Step-by-Step Plan: The Legally Sound Approach
Step 1: Identification and Initial Documentation (Week 1-2)
Actions:
- Register all past and current incidents with date, time, witnesses, and exact facts.
- Collect physical evidence (emails, chat messages).
- Request written statements from witnesses.
- Assess the impact on the team.
Pitfall: Do not wait. Memories fade. If an incident happens on Tuesday, document it on Tuesday.
Step 2: Initial Meeting with the Employee (Week 2-3)
Actions:
- Schedule a formal meeting.
- Present the concrete behaviours that are problematic.
- Right to be heard: Explicitly give the employee the opportunity to respond.
- Document the conversation in a written report and email it to them.
Meeting structure:
- Introduction: Purpose of the conversation.
- Facts: Present the specific incidents.
- Response: Listen to the employee’s side.
- Expectations: State clearly what must change.
- Agreement: Set follow-up actions.
Step 3: Written Warning (Week 3-4)
If the behaviour continues, you move to a formal warning.
Actions:
- Send a formal written warning (registered mail or confirmed email).
- Be specific about which behaviour must stop.
- Set a clear timeframe for improvement.
- Consequences: Explicitly state that failure to improve may lead to termination.
Example formulation:
“Following our conversation on [date], we formally warn you about your behaviour regarding [specific incidents]. This is contrary to good employment practices. We expect you to immediately [concrete improvement points]. If there is no lasting improvement, this may lead to termination of your employment.”
Step 4: Improvement Plan and Monitoring (Week 4-12)
For behaviour cases, a Performance Improvement Plan (PIP) is still often necessary, though it may be shorter than for competency issues.
Actions:
- Establish a clear plan with measurable objectives (e.g., “Communicate respectfully in all team meetings”).
- Schedule weekly or biweekly evaluation moments.
- Document each evaluation.
Pitfall: The plan must be real. If a judge feels you set the employee up to fail, the dismissal will be rejected.
Step 5: Second/Final Warning (Week 12-13)
If the behaviour persists or recurs:
- Send a final written warning.
- Reiterate the seriousness.
- Give one final, short timeline (2-4 weeks).
Step 6: Decision to Terminate (Week 14-16)
Actions:
- Evaluate the file. Are all conditions met?
- Engage legal counsel.
- Investigate redeployment (and document why it is impossible).
- Prepare the dissolution request or propose a settlement agreement.
Procedure: UWV or Subdistrict Court?
In the Netherlands, the route to dismissal depends on the reason.
Route 1: Dissolution via Subdistrict Court (Article 7:671b BW)
This is the route for toxic behaviour (personal reasons, disrupted relationship, culpable acts).
- Process: You submit a petition to the Subdistrict Court (Kantonrechter).
- Hearing: A judge hears both sides.
- Decision: The court decides if the contract is dissolved and sets the end date.
- Timeline: 2-4 months.
Route 2: Dismissal Permission via UWV
This route is for economic redundancy or long-term illness (2+ years). It is not used for behavioural issues.
Legal Assessment: What Does the Court Examine?
The subdistrict court assesses the case based on strict criteria:
- Is there a serious disruption? Is it an isolated incident or a pattern? Is the working environment truly damaged?
- Is the disruption lasting? Have you tried to fix it (mediation, coaching)? Is it clear that things will not get better?
- Has the employer acted carefully? Did you warn them? Did you listen to them?
- Is the evidence sufficient? Are the facts concrete and dated?
Standard of proof: You do not need absolute scientific proof, but you must make the disruption “sufficiently plausible” with documentation.
Alternatives to Dismissal
Litigation is expensive and uncertain. Consider these alternatives first:
1. Settlement Agreement (Termination by Mutual Consent)
This is the most common outcome. You and the employee agree to part ways.
- Pros: Fast, no court hearing, certainty.
- Cons: You usually pay a severance package (transition payment plus potentially extra to ‘buy off’ the risk).
- Why employees accept: It secures their right to unemployment benefits (WW-uitkering), provided the agreement is drafted correctly.
2. Mediation
Professional mediation can sometimes solve the conflict or, if not, prove to a judge that you tried everything to restore the relationship.
3. Temporary Suspension (Non-active Duty)
In cases of severe escalation (e.g., shouting matches), you can suspend the employee to cool things down and investigate. You must continue to pay their salary.
Important Pitfalls and Points of Attention
1. The Illness Trap (Opzegverbod)
A common scenario: You call the employee in for a disciplinary meeting, and the next day they call in sick due to “work-related stress.”
- Risk: You generally cannot terminate an employee during illness (Article 7:670 BW).
- Solution: Immediately send them to the Occupational Physician (Arboarts). If the doctor says it is a “labour conflict” and not a medical illness, the prohibition on dismissal may not apply, but you must prioritize conflict resolution (mediation).
2. Discrimination
Ensure you are not judging the “toxic” employee more harshly than others for the same behaviour. Consistency is key.
3. Too Rapid Escalation
Judges hate it when employers rush. If an employee has worked for you for 10 years and acts out once, you cannot fire them immediately. The punishment must fit the crime and the tenure.
Compensation Upon Dismissal
Transition Payment (Transitievergoeding)
Even if you win in court, you usually have to pay the statutory transition payment.
- Calculation: 1/3 monthly salary per year of service.
- Cap: €94,000 (2025) or one annual salary, whichever is higher.
Exception: If the dismissal is due to seriously culpable conduct (ernstig verwijtbaar handelen) by the employee (e-ground), the court may rule that no transition payment is owed. This is rare and requires extreme behaviour (e.g., theft, fraud).
Fair Compensation (Billijke vergoeding)
If the judge feels the employer acted badly (e.g., bullying the employee out, fake file building), they can award “fair compensation” on top of the transition payment. This can be substantial.
Checklist: Are You Ready for the Dissolution Procedure?
Before filing, check your status:
Documentation
- All incidents are dated and factually described.
- Witness statements are written and signed.
- Meeting reports are signed or confirmed sent.
- Written warnings were received by the employee.
Procedure
- The employee had a genuine chance to improve.
- The “Right to be heard” was applied.
- Redeployment was investigated and rejected with reasons.
- No dismissal prohibition (illness, pregnancy) applies.
Legal
- The dismissal ground is clear (e-ground or g-ground).
- Legal counsel has reviewed the file.
Why Diligence Pays Off
Dismissing a toxic employee in the Netherlands is a legal marathon, not a sprint. Case law shows that employers who are insufficiently prepared—who rely on emotions rather than evidence—almost always fail in court.
By documenting carefully, acting fairly, and engaging experts early, you can protect your business and your remaining team from toxic influence.
Do You Need Legal Assistance?
Law & More assists employers with the delicate process of dismissing problem employees. Our employment law attorneys have extensive experience with Dutch dissolution procedures and can guide you from the first warning to the final hearing.
Contact us for:
- Assessment of your current documentation.
- Legal advice on the best strategy (Settlement vs. Court).
- Drafting legally sound warnings and meeting reports.
- Representation during the dissolution procedure.
Contact: [email protected]
Frequently Asked Questions
Can I immediately dismiss a toxic employee?
No, summary dismissal is only possible for “urgent causes” like theft or violence. For toxic behaviour, you generally must follow the route of warnings, an improvement plan, and dissolution via the Subdistrict Court.
How long does a dissolution procedure take?
On average, 2-4 months from the moment you submit the petition to the court. However, the preceding phase (building the file and improvement plan) can take 3-6 months.
Must I always pay a transition payment?
Usually, yes. Even if the employee is dismissed for poor behaviour, they are entitled to the transition payment unless their behaviour was “seriously culpable” (e.g., criminal acts).
Can an employee challenge the dismissal?
Yes. If you settle via a VSO, they usually waive this right. If you go to court, they can defend themselves. If you dismiss summarily, they can challenge it and claim unpaid wages.
May I dismiss a toxic employee who is sick?
If the dismissal is related to the illness, no. If the dismissal is based on behaviour unrelated to the illness, it is possible via the Subdistrict Court, but you bear a high burden of proof to show the illness isn’t the cause of the behaviour. Always consult a lawyer in this scenario.
