How to lawfully dismiss a toxic employee in the Netherlands: a guide for employers

Dismissing a toxic employee in the Netherlands requires a reasonable ground under Article 7:669 of the Dutch Civil Code and, for behavioural cases, a petition to the subdistrict court (kantonrechter) rather than a permit from the employee insurance agency. The grounds that fit are culpable acts or omissions, a seriously and permanently disrupted working relationship, other circumstances, or a combination of grounds. In every case the employer carries the burden of proof, and a documented file of dated, concrete incidents decides the outcome.

Toxic conduct damages an organisation well beyond the performance of the individual: it depresses productivity across a team, drives absence and pushes good people out. Dutch dismissal law nevertheless offers no shortcut. A court will not accept that someone is difficult or bad for morale; it wants to know what happened, when, who saw it, what you said about it and what chance the employee was given to change. This guide sets out the grounds, the evidence, the procedure, the traps and the cost.

What makes an employee toxic in legal terms

The legally relevant distinction is between inability and conduct. An underperformer cannot yet do the job; the route there is the unsuitability ground, which requires a genuine improvement plan. A toxic employee is capable but behaves in a way that systematically undermines cooperation and the working environment. That is a conduct case, and conduct cases are assessed differently.

Courts look for a pattern rather than an incident. The behaviour that turns up in successful files is recognisable: persistent undermining of decisions in a non-constructive way, spreading rumours that damage colleagues, withholding information or obstructing work, a settled refusal to cooperate, intimidation, exclusion or transgressive behaviour towards colleagues, and the deliberate maintenance of conflict. What matters is not the label but the effect: whether the conduct is repeated, whether it has been addressed, and whether it has demonstrably harmed the working relationship or the team.

Two preliminary questions deserve an honest answer before you start. Is the behaviour a response to something in the organisation, such as a reorganisation, a manager or an unresolved complaint? And has the employee ever been told clearly, in writing, that the behaviour is unacceptable? If the answer to the second question is no, you are not near a dismissal, whatever the file feels like.

The statutory grounds that fit a conduct case

Article 7:669 of the Civil Code allows termination only where there is a reasonable ground and redeployment in another suitable position within a reasonable period is not possible or not appropriate. The reasonable grounds are listed exhaustively in the third paragraph, and four of them are relevant here.

• Culpable acts or omissions of the employee (ground e). This concerns unwillingness or misconduct rather than inability: a serious breach of duty, aggression, deliberate disregard of reasonable instructions. The conduct must be attributable to the employee and serious enough that continuation of the employment cannot reasonably be required. Lesser measures, such as a formal warning or a suspension, will normally have to have been tried first, unless the conduct is so serious that they would be pointless.
• A disrupted working relationship (ground g). The relationship must be so seriously and permanently disrupted that continuation cannot reasonably be required. This is the ground that fits most toxic cases, because it does not require you to prove that each individual act was culpable, only that the situation has become unworkable. The price is that you must show the disruption is lasting and that restoration was genuinely attempted, typically through mediation.
• Other circumstances (ground h). A residual ground, used for situations that do not fit elsewhere, such as detention or the loss of a permit required for the job. It is not a catch-all for a weak conduct case.
• The cumulation ground (ground i). In force since 1 January 2020, this allows the court to dissolve on a combination of circumstances drawn from grounds c to e and g and h, where none of them is sufficient on its own but together they make continuation unreasonable. It was introduced precisely for cases like these, where conduct, a damaged relationship and marginal performance overlap. There is a cost: if the court dissolves on the cumulation ground it may award the employee an additional payment of up to half the transition payment on top of it.

One point about redeployment is frequently misunderstood. The obligation to consider a suitable alternative position applies to almost every ground, but the statute expressly disapplies it where the ground is culpable acts or omissions of the employee. On the disrupted relationship ground the obligation does apply, so if your organisation has several sites or departments you should record specifically why a move would not solve the problem.

Summary dismissal is almost never the answer

Summary dismissal (ontslag op staande voet) under Articles 7:677 and 7:678 of the Civil Code ends the contract immediately, without notice and in principle without a transition payment. It requires an urgent cause, it must be given without delay once the facts are sufficiently clear, and the reason must be communicated to the employee at the same time. Courts apply all three requirements strictly and weigh the personal circumstances of the employee, including length of service and the consequences of losing the job, even where the conduct is proven.

Physical aggression, credible threats, theft and serious fraud can meet the threshold. Persistent unpleasantness, gossip and undermining do not, however damaging they are cumulatively, because the urgent cause has to lie in the conduct itself rather than in its accumulation, as a Dutch court confirmed in a case where poor performance was held not to be an urgent cause. If a summary dismissal fails, the employee can ask the court to annul it or to award compensation, and the employer faces a claim for wages over the intervening period as well as the ordinary termination costs. The employee must act within two months, which is short, but the exposure over that period is real.

Where an incident is serious enough to consider summary dismissal, the safer sequence is to suspend the employee on full pay, investigate the facts properly with the employee heard, and take the decision within days rather than weeks. Delay is fatal to an urgent cause but so is acting before you know what happened.

The file: what a court actually reads

Dutch case law is consistent on one point above all others. Without a file, there is no dismissal. The employer bears the burden of making the ground sufficiently plausible, and generalities do not do it. A statement that someone is always negative proves nothing; a dated record of what was said, by whom, in whose presence, proves a great deal.

A file that holds up contains five kinds of material.

• Concrete factual descriptions of incidents. Not adjectives but facts: the date, the time, the setting, what was said or done, and who was present. Compare the value of a note saying that an employee was rude in a meeting with a note recording that on a given date, during a named meeting, the employee interrupted a presentation, struck the table and called the project lead incompetent.
• Written records of every conversation about the behaviour. Minutes of appraisal and warning meetings, sent to the employee so that the date of receipt is fixed, and containing the response of the employee. The principle that the other side must be heard is not a formality here: a file in which the employee never had the chance to answer is a file a court distrusts.
• Warnings and improvement agreements. Written warnings that name the behaviour, state what must change, set a period and spell out the consequence if nothing changes. Agreed objectives that are observable rather than subjective, with evaluation dates.
• Statements from others. Written, dated and signed accounts from colleagues, and complaints from clients where they exist, together with emails and messages that show the behaviour. Anonymous accounts have limited weight; at the hearing stage, names are usually needed.
• The redeployment assessment, where the ground requires it: which suitable positions exist, what was considered and why a move would not resolve the problem.

The recurring reason employers lose these cases is not that the conduct did not happen. It is that the request describes impressions rather than facts, that no written warning was ever given, or that the employee was never told the job was at risk. A judge who cannot see from the file what precisely occurred and when will refuse the request, whatever the atmosphere in the team.

A defensible sequence, step by step

The timescales below are typical rather than prescribed. A serious single incident can compress them; a long-serving employee with an unblemished record will require more.

Identify and start recording

Register every incident, past and present, with date, time, witnesses and exact facts, and secure the emails and chat messages that support them. Ask witnesses for written accounts while the events are recent. Assess and record the effect on the team, because the disruption is part of what you have to prove. Do not wait: an incident recorded on the day it happened carries far more weight than one reconstructed months later.

Hold a first formal meeting

Put the concrete behaviour to the employee, and give them a genuine opportunity to respond before you reach any conclusion. Say plainly what has to change. Record the meeting, including the response, and send the record to the employee with an invitation to comment on it. This is the meeting that converts a management irritation into a documented process.

Issue a written warning

If the behaviour continues, send a formal written warning by a route that establishes receipt. Name the incidents, state that the conduct is contrary to good employment practice, describe the improvement required in observable terms, set a period, and state expressly that failure to improve may lead to termination of the employment. A warning that does not mention the consequence is worth very little later.

Agree an improvement trajectory and follow it

In conduct cases the trajectory can be shorter than in a performance case, but it must be real. Set objectives that can be observed, hold evaluations at fixed intervals, and record each one. Offer support where it is plausibly relevant, such as coaching or mediation. A court that concludes the plan was designed to fail will refuse the request, and an employee who can show that will have a fair compensation claim.

Give a final warning, then decide

If the behaviour persists or recurs, a final written warning with a short deadline is the last step before a decision. At that point, review the file against the ground you intend to rely on, take legal advice on whether it will carry, document the redeployment assessment where it is required, and choose between proposing a settlement agreement and filing a dissolution petition.

Which route: the subdistrict court, not the UWV

Dutch dismissal law splits the route by reason. The employee insurance agency (UWV) handles dismissal permits for redundancy and for long-term incapacity of two years or more. Everything personal, including conduct, a disrupted relationship, unsuitability and the cumulation ground, goes to the subdistrict court by way of a dissolution petition under Article 7:671b of the Civil Code. Filing in the wrong place costs months, and a dismissal lawyer will normally settle the route before anything is drafted.

The procedure is a petition, followed by a defence and a hearing at which both sides and any witnesses are heard, and a written decision. From filing to decision, two to four months is a realistic expectation, on top of the time already spent building the file. If the court grants the request it fixes the end date at the point at which the contract would have ended on regular notice, less the time the procedure took, but leaving at least one month. Where the employer has acted in a seriously culpable way, the court can set an earlier date and award compensation. Both parties can appeal.

What the court tests

The assessment follows a predictable order, and preparing the file against it is the single most useful thing an employer can do.

• Is there a real disruption or a real culpability, or only an incident? The court looks for a pattern and for evidence that the working environment was actually affected, not merely that a manager found the employee unpleasant.
• Is it lasting? Has restoration been attempted, through conversation, coaching or mediation, and is it clear that the situation will not recover? An employer that never proposed mediation on the disrupted relationship ground has a weak answer to this question.
• Did the employer act carefully? Was the employee warned, heard and given a genuine chance to change, and was the response proportionate to the conduct and to the length of service?
• Is the evidence sufficient? Are the facts concrete, dated and supported by documents or statements?
• Does a prohibition on notice apply, and is redeployment excluded or genuinely impossible?

The standard of proof is not scientific certainty. You must make the ground sufficiently plausible on the basis of the file. That is a lower bar than it sounds only if the file exists.

The traps that end these cases early

The employee reports sick

The most common turn of events is that the employee reports sick shortly after the first formal meeting, often citing work-related stress. Article 7:670 of the Civil Code contains a prohibition on giving notice during the first two years of incapacity, and although the subdistrict court may still dissolve where the request is unrelated to the illness, the practical position becomes much harder.

The correct response is to refer the employee to the company doctor immediately. Only the company doctor determines whether there is incapacity for work. Where the assessment is that the absence stems from an employment conflict rather than a medical condition, the professional guidance for occupational physicians in conflict situations is to recommend a period of calm and a structured attempt at resolution, usually mediation. Following that route serves you twice over: it is what the employee is entitled to, and it is the evidence a court will want that restoration was attempted. Continuing to press for dismissal while ignoring the advice of the company doctor is the surest way to end up paying fair compensation.

Inconsistency and discrimination

Treating this employee more harshly than others who behaved comparably undermines the file and can amount to prohibited distinction under the equal treatment legislation, particularly where the employee belongs to a protected group or has recently raised a complaint. Check the record: has similar behaviour by others been addressed, and how? Take particular care where the employee has reported wrongdoing, because the protection for whistleblowers under the Whistleblowers Protection Act (Wet bescherming klokkenluiders) reverses the burden of proof on detriment.

Escalating too fast

Proportionality runs through the whole assessment. A single outburst by an employee with ten years of unblemished service does not support dismissal, and a request that treats it as if it did invites refusal and a costs order. The seriousness of the response has to match the seriousness and persistence of the conduct and the length of the relationship.

Alternatives that are often better than litigating

A dissolution procedure is public between the parties, slow and uncertain. Three alternatives resolve most cases.

A settlement agreement (vaststellingsovereenkomst) is by a distance the most common outcome. The parties agree the end date, the payment and the practical arrangements, and the employee usually retains entitlement to unemployment benefit provided the agreement is drafted correctly, which means in particular that the initiative must lie with the employer and there must be no urgent cause. The employee has a statutory reflection period of fourteen days in which the agreement can be dissolved without reasons, and that period has to be stated in the agreement; if it is not, it runs for three weeks. The price of certainty is usually the transition payment plus something to buy off the litigation risk.

Mediation can resolve the conflict, and where it does not it demonstrates to the court that restoration was attempted. On the disrupted relationship ground that evidence is close to indispensable, and the cost of a mediation is small relative to the cost of a refused petition.

Suspension on full pay (op non-actiefstelling) buys time to investigate and takes the immediate pressure off a team. It is not a sanction and it does not suspend the obligation to pay wages. Use it where there has been a serious incident or where the working environment has become untenable, keep it short, and record the reason, because an unexplained or prolonged suspension is itself an argument that the employer acted culpably.

What it costs

The transition payment is due whenever the employer takes the initiative to end the employment, including where the court dissolves the contract. It accrues from the first day of employment and amounts to a third of the monthly wage for each year of service, pro rata for shorter periods. The statutory maximum is adjusted each year and published by the government, with the alternative of one annual salary where that is higher; take the current figure rather than one from an older article.

The transition payment falls away only where the termination results from seriously culpable conduct by the employee, a threshold that is deliberately high and in practice reserved for conduct such as theft, fraud or serious violence. Even then the court retains a discretion to award it in whole or in part where withholding it would be unacceptable.

An additional payment of up to half the transition payment can be awarded where the court dissolves on the cumulation ground. It is the price of relying on a combination of grounds none of which is sufficient on its own, and it should be built into the calculation before you choose that route.

Fair compensation (billijke vergoeding) is awarded where the dissolution results from seriously culpable conduct by the employer: constructing a file after the decision to dismiss had already been taken, disregarding the advice of the company doctor, pressuring an employee out, or retaliating against a complaint. It is assessed on the circumstances of the case and is not capped, which is why the process matters as much as the substance.

Alongside these, budget for legal costs on both sides, the notice period that continues to run during the procedure, and the value of management time. Set against those, the cost of a mediation or of a slightly more generous settlement is usually modest.

Checklist before you file

Run through this before a petition goes to the court. A gap in any line is a reason to wait rather than to file.

• Every incident is dated and described in facts rather than adjectives.
• Witness statements are written, dated and signed.
• Meeting records were sent to the employee and the response of the employee is on file.
• At least one written warning names the behaviour, the required change and the consequence, and receipt can be shown.
• The employee had a genuine and documented opportunity to improve.
• Mediation or another attempt at restoration was offered, or there is a recorded reason why it was pointless.
• Redeployment was assessed and rejected with reasons, unless the ground is culpable conduct.
• No prohibition on notice applies, and if the employee is absent through illness the company doctor has been consulted and the advice followed.
• The intended ground is identified, and the file is measured against that ground rather than against the general sense of grievance.
• Counsel has reviewed the file and the cost of the likely outcome has been calculated.

Frequently asked questions

Legal support for employers

Dismissing a toxic employee in the Netherlands is a matter of preparation rather than nerve. Employers who lose these cases almost always lost them months earlier, in the period when nothing was written down and nothing was said clearly. Employers who succeed have a file that a stranger can read and follow.

Law and More advises employers through this process from the first conversation onwards. We assess whether the material you already have supports a ground, draft warnings and meeting records that will hold up, advise on the choice between a settlement agreement and a dissolution petition, negotiate the settlement, and represent you at the hearing and on appeal. If you are dealing with conduct that is damaging your team, contact our employment law team before the next conversation with the employee rather than after it, and see our page on the settlement agreement for the alternative route.

Employers weighing up outside advice may also want our guidance on choosing an employment lawyer in the Netherlands.