28 May 2025
Replying to a private message or quickly checking the news during work hours: most of us do it occasionally.
However, for the employer in the case heard by the Court of Appeal of ’s-Hertogenbosch in late 2024, this was unacceptable, and the employee was dismissed on the spot. Unjustified, ruled both the subdistrict court and the Court of Appeal.
This case involved an employee working on a fixed-term contract at a beauty salon. Three months before the contract was due to end, the employer informed the employee that the contract would not be renewed due to a disrupted (working) relationship. Understandably, this announcement diminished the employee’s motivation to continue working. A month later, the employee was summarily dismissed. The employer alleged that the employee had: (1) deliberately left their appointment schedule empty without securing new bookings, (2) failed to perform assigned cleaning tasks, and (3) used the work computer for non-work-related activities during working hours.
In its decision, the court examined the accusations against the employee. The judge ruled that reasons one and two amounted to performance issues, which in themselves do not justify summary dismissal. A performance improvement plan would have been more appropriate. As for the third reason, the court also found it insufficient for a valid summary dismissal.
The internet usage was deemed not excessive — it concerned around six instances, each lasting between two and ten minutes. Moreover, the employee had not previously received a warning, and there was no clear internet usage policy in place at the company.
Under different circumstances, the case could have turned out in the employer’s favour. Just as a seemingly minor offence, like the theft of a packet of peanuts by an airline employee, can justify dismissal if strict policies are in place, so too could internet surfing during work hours be deemed unacceptable — provided the rules are consistently enforced for all employees.
In my view, the nature of the business should also be considered. For example, a surgeon replying to messages during surgery or a delivery driver using their phone behind the wheel would be viewed much more seriously than an employee browsing recipes while waiting for new tasks.
An important takeaway from this judgment is the Court of Appeal’s remark that general complaints about performance do not, by themselves, justify summary dismissal. An employee who is underperforming — as seemed to be the case here — must first be addressed and offered a performance improvement plan before dismissal can be considered.
The law does not prescribe how a performance improvement plan must be structured, nor how long it should last. In this case, the issue of not filling the diary (i.e., not attracting new clients) could possibly have been addressed quickly through guidance and support, particularly if the lack of effort was due simply to diminished motivation.
For employees who fail to carry out cleaning duties, a written instruction reminding them to follow the employer’s directions might suffice. In such a case, it could be classified more as refusal to follow instructions rather than underperformance — though a warning should still precede stricter disciplinary action.
If an employee is unwilling to cooperate with an improvement plan and repeatedly ignores the employer’s instructions, a stronger disciplinary measure might be justified. If your business is facing such a situation and you are considering summary dismissal, it is essential to consult a solicitor beforehand. As this case illustrates, courts scrutinise summary dismissals very carefully.
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This article was written for Rendement.
