Definitely not good employment practice

Discussions around an employee’s performance often lead to tension and in many cases affects the employment relationship. The assessment of performance of an employee should be based on objective criteria. These criteria must be agreed upon in the employment contract, derived from the job description, or otherwise discussed with the employee. In this respect, employers are advised to address underperformance in conversation and record it in writing.

An employee is expected to be open to improvement and support. If the employee is given a reasonable opportunity to improve but their performance still does not meet expectations, and there is no suitable alternative position available within the organisation, the employer may request the court to terminate the employment contract. Meeting all of these conditions can be a challenging task.

Intimidating conduct

In the recent case, the employee—a candidate civil-law notary—had been employed for six years. In the year before, she had received a promotion, a salary increase, and a bonus. Shortly thereafter, she was told her performance was lacking and was placed in the office of one of the partners, which she found intimidating. The employer then told her there was no future for her at the firm and urged her to sign a settlement agreement. When the employee refused, the employer tried to compel her to attend an exit mediation session. The employee declined this, stating that the employer had made it clear the mediation was aimed at terminating the employment. The employer then stopped paying the salary and filed a request with the court to terminate the employment contract. The court granted this, partly because the employee herself indicated she could not return to the firm due to the damaged employment relationship.

Disruption

The employer’s approach came at a high cost. The court ruled that, in this specific case, underperformance was not a sufficient reason for dismissal, as no objective improvement area’s had been discussed and agreed to. The employer’s actions to force the termination of the employment contract—including the pressure exerted—were in breach of good employment practices. The fact that the working relationship had been damaged was significantly attributable to the employer. As a result, the court awarded the employee fair compensation of €150,000, in addition to over € 20,000 in unpaid wages and several hundred euros in other reimbursements.

Rechtbank Amsterdam, 20 december 2024, ECUI (verkort): 8358

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This article was written for Rendement.